Baroness Scotland of Asthal: My Lords, I have made it absolutely clear that learning is of real importance, not least because it is the gateway out of offending behaviour. The acquisition of skills makes a direct impact on employability, which has a direct impact on resettlement and reducing re-offending. We are making that an important part of our new plans to change the template that we have had.

Baroness Ashton of Upholland: My Lords, as I indicated, the funding available to the Information Commissioner is some £5 million. I visited him in Wilmslow not long ago to discuss resources. My noble and learned friend meets him regularly and resources are always a subject on the agenda. The Information Commissioner would agree that he has been invited to put forward proposals if he feels that he needs resources in order to do his job more efficiently. He has been looking carefully at that but believes that once the surge—if I may describe it as such— is over, his office will be able to settle down and deal with the issues effectively and efficiently.

Baroness Ashton of Upholland: My Lords, I sought to discover whether the Information Commissioner had a break-down of complainants because there is an issue—which I think my noble friend is referring to—concerning the use of the Freedom of Information Act by different people. I believe very firmly that the purpose of the Act, above all, is to allow local people in communities to obtain information in order to enhance the ability of government to be better at what they do. It is critical that local people should be able to do that and should understand better how government works, and the Government should respond to that. That is ultimately what the regime is for. We also suffer from a number of frivolous requests. I am sure all noble Lords read the article by my noble and learned friend where he referred to the request, for example, for the number of windows at the Department for Education and Skills. Each department could probably come up with a number of frivolous requests which require time to answer. We need to look carefully at ensuring that the Act is used properly, especially, as the noble Baroness said, for those of us who campaigned for so long and so hard to get this very important legislation on the statute book.

Lord Renton: My Lords, four years ago—when I was only 93—having twice fallen asleep when driving, I voluntarily surrendered my driving licence. I have never driven again since. Should not the Driver and Vehicle Licensing Agency be alerted to the possibility of there being various ways in which people should no longer go on driving?

Lord Davies of Oldham: My Lords, I do not wear glasses very often and am singularly ill qualified to respond to this Question. However, I emphasise again that the DVLA is concerned that the test should be carried out under proper and fair conditions. As I said, all test applicants who wear glasses in order to drive would be expected to wear them for a test that is measuring their ability to drive safely.

Baroness Scotland of Asthal: My Lords, the noble Baroness is absolutely right: the whole of the respect agenda is predicated on partnership, partnership right across the piece, so that everybody has a role to play. Again, it is better supported by the alliances that I have mentioned. The noble Baroness will know that in November I launched the faith and voluntary sector alliance. We acknowledge that the Government need all the help they can get to make sure that we are doing all that we can as a community to meet the needs of the people about whom we care.

Lord Kingsland: My Lords, I thank the Minister for her introduction, which has helped the Bill to be looked at dispassionately and objectively at the Report stage in the light of the Government's general framework. All the issues which the Minister raised will be considered in detail, line by line, during the course of the afternoon. For those reasons, I do not propose to say anything further at this stage.

Baroness Scotland of Asthal: My Lords, these amendments are more comprehensive in nature. In moving the amendment, I shall speak also to Amendments Nos. 5, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80, which stand in my name and concern Clauses 1, 2, 3 and 28.
	The key changes that these amendments bring forward relate to the opening clauses of the Bill, in particular the new offence of disseminating terrorist publications. This new offence encompasses all those who disseminate extremist material. We have made it clear throughout the passage of this Bill that the offence is intended to target two types of publications: those that may encourage terrorism, and those that may be of use to terrorists, such as training manuals.
	We should not ignore the contributory role that radical texts and extremist pamphlets have in radicalisation. They serve to propagate and reinforce the extremist and damaging philosophies which attempt to justify and explain the motivations of terrorists. We should not underestimate the role that such literature can have in radicalising vulnerable and susceptible young people, particularly changing Muslims from law-abiding members of the community to potential terrorists.
	Equally, the ability of terrorists to exchange information on techniques and tactics in order to enhance their ability to prepare and commit terrorist acts needs to be disrupted as effectively as possible. We have seen that through the data we have had and discussed during Committee and our debates earlier. While under Section 58 of the Terrorism Act 2000 it is already an offence to create or possess information that is likely to be of use to a person committing or preparing an act of terrorism, it is not currently an offence to disseminate that material. We want to change that situation.
	For understandable reasons, many noble Lords on all sides of the House have spoken at length about the potential risk that they believed this offence posed to legitimate activities. While paying due attention to these concerns, we should not allow them to deflect us from the real issues which we need to confront, and which this clause will allow the security and law enforcement agencies to tackle more effectively. There is a real evil that needs to be addressed and this clause will allow us to address it.
	At the same time as wanting to prevent extremism in our communities and to provide our law enforcement agencies with the most effective tools to disrupt and combat terrorism, the Government have always been conscious that we need to steer a careful line between these intentions and the freedoms we cherish. Much of the concern expressed in Committee focused on whether the Government have placed that line in the right place. There was not a difference between us as to the need to do it; it was just where that line should be drawn, in particular with reference to the concerns of those in the academic circles and within the UK library community.
	It has never been our intention, as noble Lords know, to curb the activities of legitimate booksellers, librarians or academics engaged in the study of terrorism, such as those at the University of St Andrews which was rightly mentioned by the noble Baroness, Lady Carnegy of Lour. As I explained in Committee, we did not believe that the Bill as it stood would have had this effect. We maintain that belief. However, the Government are a listening government, as I hope we have demonstrated on many occasions. I have, in particular, considered deeply the comments of my noble friends Lord Eatwell and Lady Warwick, and also those of the noble Baroness, Lady Williams of Crosby, the noble Lord, Lord Goodhart, and noble Lords on all Benches, who have expressed anxiety about the issue. Their contributions have led me to reflect on how we could best meet these proper concerns.
	Accordingly, I have tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, which mirror the same tests that exist in Clause 1. I have also tabled amendments to modify the wording of Clause 1. I do not believe that the amendments change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as that in Clause 1, to the extent that that is possible in a different offence. We listened very carefully to the arguments about the synergy between the two and the importance to have consistency, and we have tried to reflect that in the way in which the amendments have been drafted.
	The prosecution under the amended Clause 2 will have to prove that a person disseminating a terrorist publication either intended to encourage terrorism or to provide information of use to terrorists, or that the person was reckless to the possibility that someone would be encouraged to commit acts of terrorism or would find the material useful in the commission of acts of terrorism. Those changes are proposed in Amendments Nos. 19 and 20. The changes to Clause 1 to which I have referred are in Amendment No. 4.
	The inclusion of intent and recklessness in Clause 2 will, I am confident, be welcomed by my noble friends Lord Eatwell and Lady Warwick of Undercliffe as well, I hope, by both opposition parties. My noble friends and noble Lords in opposition parties can be reassured that whatever concerns they had about the potential impact of the Bill have now been addressed—and, I hope, addressed properly.
	I am pleased to see the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, in their places, representing as they do a spectrum of political positions in this House. They have all tabled amendments—Amendments Nos. 17 and 18—which would have had the same effect as Amendments Nos. 19 and 20. Of course, in view of the fact that the government amendments achieve the same effect but do so in the context of a package of proposed amendments that will ensure that the Bill remains technically effective, I invite and urge noble Lords, especially those I have mentioned, not to press Amendments Nos. 17 and 18 when we come to them and to support the government Amendments Nos. 19 and 20, with related Amendment No. 4, which changes Clause 1.
	Before I turn to the amendments in this group that have been tabled by noble Lords opposite, I should explain at a little greater length the other amendments that I have tabled. Many relate to the major changes to Clause 2, which I will now explain. Others are of a more technical nature. I am sure that many noble Lords are anxious to express their support for the amendments, so I shall comment on the relatively minor amendments are briefly as possible.
	Amendments Nos. 28 and 29 are technical amendments. Amendment No. 28 seeks to make a particular expression clearer in the context of the wording and structure of the offence as a whole, which we shall seek to introduce. Amendment No. 29 seeks to change an internal reference in the light of a new package of amendments. Neither of those amendments effects any substantial change to the meaning of the offence. Amendment No. 30 inserts into Clause 2 a provision mirroring Clause 1(5)(b); it makes it clear that the offence can be committed whether or not anyone is in fact encouraged to commit acts of terrorism or finds information useful in committing acts of terrorism. That is because we are convinced that when prosecuting someone under this clause, the prosecution should have to demonstrate only the state of mind of the person making the statement, not the audience hearing it. We believe that the provision is entirely reasonable; it also ensures that the offence in Clause 2 can operate on the same principles as the offence in Clause 1, as far as possible.
	Amendments Nos. 15, 16, 31, 36 and 40 give effect to changes that I signalled in Committee. Amendment No. 15 generalises the defences in Clause 1 that the person publishing the statement did not endorse it and that it was clear in all the circumstances that he did not, so that it is available to everyone, not just those providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, it is our belief that there is no reason why a defence should be available to those who commit the offence intentionally.
	Amendment No. 16 is a technical provision that clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. Amendment No. 36 plays a role similar to that of amendment No. 15, but in Clause 2. It generalises the defence in Clause 2(9)—that is, that the person disseminating the publication did not endorse those parts that constituted an encouragement of terrorism and that it was clear in all the circumstances that he did not. Therefore, the defence is available to everyone, not just to those providing a service electronically.
	Amendment No. 40 removes the defence that was available in relation to the dissemination of material of use to terrorists, because that defence provided that a person had a defence if he did not intend the matter in the publication to be of use to terrorists. That is now unnecessary, as intention is part of the offence. In any case, such material, unless it also fell into the category of material encouraging terrorism, would not be capable of being endorsed. This amendment also restricts the defence relating to material that encourages terrorism to those who commit the offence recklessly.
	Clause 31 removes the defence in Clause 2(8), which was originally intended to provide protection for libraries, but is now redundant in the light of the generalised defence in Clause 2(9) and the insertion of the notions of intent and recklessness into Clause 2. The final government amendments arising from the changes to Clause 2 are amendments Nos. 44 and 80. These are purely technical in nature and ensure that internal references will still be correct. For all these reasons, I urge your Lordships to support Amendments Nos. 2, 3, 4, 15, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80. I am confident that noble Lords have held all those numbers firmly in their minds.
	I turn now to the amendments tabled by members of your Lordships' House who sit opposite or on the Cross Benches. Before I address those that have been tabled with regard to Clause 2, I should like to make some comment on amendment No. 5. This seeks to remove the notion of recklessness from Clause 1. In a similar vein, amendment No. 4A seeks to remove the notion of recklessness from government Amendment No. 4. I will try to explain our view as briefly as I can, because I believe that we all understand one another's positions on this point.
	I am convinced that it should be an offence to publish a statement that is likely to encourage terrorism, knowing that members of the public to whom it is published could indeed be encouraged to commit acts of terrorism. I do not believe that it should be possible for a terrorist preacher, for example, to argue that they did not actually intend to encourage terrorism when it was perfectly clear that his or her comments would do so. If the person knew that their comments were likely to encourage terrorism but made them anyway, it should be possible to prosecute. Otherwise we will allow a climate to be created in which terrorism is increasingly regarded as acceptable; we do not believe that that would be an acceptable position.
	I therefore urge noble Lords who have tabled these amendments to rethink their position and to withdraw them. It would be difficult to tell citizens of this country, among others, that those who have suffered through terrorism—whose friends or relatives have been killed or injured—believe that it is acceptable to make statements that are likely to encourage terrorism and to know that that will be the effect of the statements. I am pleased to say that the government Benches do not hold that view and would not concur with it. Civil liberties are extremely important to us all, but so is our security and safety. So it is necessary for us to do all that we can to seek to avert those who would foment terrorism in this way.
	I turn to the opposition amendments regarding Clause 2. Although we will debate them separately in due course, Amendment No. 17 is relevant to these issues. I must confess that I am left a little confused, as the noble Lord, Lord Goodhart, who has put his name to Amendment No. 17, has also put his name to Amendments Nos. 19A, 20A and 20B, together with the name of the noble Baroness, Lady Williams. I am confused because it seems that those amendments have a very different effect from that of Amendment No. 17. The noble Lord may well have his reasons for contradicting these contradictory amendments. I certainly hope that that will become clearer in due course, not least if he abandons the contradictions, which do not concur with the Government's interpretation. I have indicated why Amendment No. 17 should be withdrawn. Government Amendments Nos. 19 and 20 perform the same job.
	I will now concentrate on Amendments Nos. 19A, 20A and 20B, which all seek to remove the word "recklessness" from the Government's amendments that would insert the notions of intent and recklessness into Clause 2. I have already spoken about recklessness a little with regard to Clause 1, so I will try to be brief now. The issue is simple. We do not believe that people should be allowed to encourage terrorism knowingly. I cannot believe that the noble Lords who have tabled these amendments think that people should be allowed to encourage terrorism knowingly. Ultimately, this will be a matter for each of your Lordships to consider.
	I am pleased with, and would like to acknowledge, the support of Her Majesty's loyal Opposition for the concept of subjective recklessness. I hope that this means that they feel able to answer no to this question. I hope that only a small minority of Members of this House believe that there has been so little regard for civil liberties that people should be allowed to encourage terrorism knowingly. As long as the Government and Her Majesty's loyal Opposition, together with as many of those Cross-Benchers and others who agree, are committed to maintaining essential civil liberties and not allowing people to encourage terrorism knowingly, I am sure that we will all retain our faith in the process.
	I now turn to Amendments Nos. 19A, 20A and 20B. I am finishing very soon. We would strongly invite the noble Lords, particularly the noble Lord, Lord Goodhart, not to pursue these amendments. This would mean supporting the inclusion of intent and recklessness in Clause 2 and in practice supporting government Amendments Nos. 19 and 20. I hope that that will be the position.
	In conclusion, I would invite the noble Lords to welcome and support the government amendments. As I have explained, the amendments do what the House wanted us to do, namely to insert intent and recklessness into Clause 2. In this respect they do the same as Amendment No. 17, which we will be debating shortly. They do so in a context of a package of amendments to revise Clause 1 as well as Clause 2. Given that the Government's amendments will achieve much the same effect as Amendment No. 17, I urge your Lordships to support the Government's Amendments Nos. 2, 3, 4, 15, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80, but I also call on the noble Lords opposite to withdraw any amendment that contradicts any of those. I beg to move.

Lord Goodhart: My Lords, the purpose of this amendment is to remove the recklessness test from the grounds on which someone can be prosecuted under Clauses 1 and 2. I certainly welcome the Government's acceptance of the principle that we should apply an intent test in Clause 2 as well as in Clause 1. My welcome would have been warmer if the conversion had not been so late. These amendments were not released until Friday morning, which gave a wholly inadequate time to consider them and consult either internally within the parties or between the various interested parties—namely, ourselves, the Conservatives, libraries, universities, Internet service providers and others.
	However, my main concern about Amendment No. 4 is that the Government are diluting the requirement for intent by adding a test for recklessness. I am aware that I have put my name down to another amendment—Amendment No. 17—as the noble Baroness has pointed out, which would apply the recklessness test. I did so at a time when the Government were, so far as I knew, refusing to apply the intent test. I was aware that the Conservative Party then wanted to have an intent and a recklessness test, as I believe it still does. Therefore, I thought that it was better to back a Conservative amendment that was likely to win rather than to leave the status quo.
	Having looked at these government amendments, I am left with very considerable doubts about what is actually meant by "recklessness" in the Bill or, perhaps more important, what the Government think it means. In Committee, we on these Benches made it clear that we wanted a simple test of intent with no recklessness alternative, whether objective or subjective. The Minister raised the case of a firebrand creature preaching terrorism and said that such people should not be allowed to raise a defence of recklessness. It seems to me that that is irrelevant, because a defendant cannot argue successfully that he did not intend the obvious meaning of the words that he used. He cannot get out of it by saying, "Oh, I said it but I didn't mean it". It seems to me that a preacher in such a case who tries to suggest that he did not mean what he said would be convicted on the basis of obvious intent.
	I am particularly concerned by the interaction of the recklessness test with the special defences that the Government want to retain in Clauses 1 and 2. I understand from what the noble Baroness has said—although this had not been explained to me before—that this test would be available to someone who was reckless but who had no intent. So, in spite of being reckless, he would be able to get away with it if he could satisfy the special defences.
	Our view is that the recklessness test is the worst of both worlds. In practice, I believe that it would be impossible to get a conviction unless intent is proved, but the recklessness test is alarming enough to lead universities, libraries and the media to withhold legitimate material and to fail to undertake work that would be in the public interest.
	I have a number of questions to put to the Minister about the effect of the Bill as the Government see it in certain circumstances. First, a newsagent sells a magazine which contains an article that expressly encourages terrorism, but the newsagent is not aware of the contents of the magazine. It seems to me that the recklessness test is not satisfied, because an essential element of recklessness must be the defendant's knowledge that either publishing or disseminating material may encourage some recipients to acts of terrorism. The special defence, therefore, is irrelevant. Does the Minister agree? If so, is it also clear that Internet service providers, who are not monitoring material transmitted by them, do not commit an offence unless notice is served on them under Clause 3?
	Secondly, the BBC carries an interview with a senior member of Hamas who actively supports terrorism in Israel. The interviewer asks forceful questions, but allows the Hamas member to state his case. The programme carries a response from the Israeli Government. The BBC must be aware that some viewers may find Hamas's arguments persuasive and be encouraged to give it assistance. Therefore, it seems that the initial recklessness test would be satisfied and that the BBC would have to rely on the defence that it did not endorse the views of Hamas and made it clear that it did not do so. Does the Minister agree with that?
	Thirdly, a newspaper carries an article that is very sympathetic to the political objectives of militants in Kashmir. That article carries emotive reports of Indian violence in Kashmir but does not mention violence committed by the militants. Intent to encourage terrorism cannot be proved. However, it seems that the article could well satisfy the recklessness test because it could indirectly encourage terrorism. The author of the article may raise a special defence, but would fail because obviously the article that he had written represented his views. The newspaper might succeed if it published a disclaimer alongside the article saying that the article did not represent its views. Does the Minister agree and, if so, does that not create a serious anomaly? It shows that two people saying the same thing could be treated differently under the Act not because of what they say but because of what they think. In effect, that is thought crime.
	The fourth and final example is this: a student asks a university library for a chemistry textbook which could assist someone wanting to make home-made explosives. The librarian knows about the contents of the book, but knows nothing about the student except that he is a student. He proceeds to lend the book. That, too, seems to satisfy the recklessness test. In that case, no special defence is available under the Bill when it incorporates the new government amendments. The librarian seems to be guilty of an offence under Clause 2 even if the student has in fact no connection with terrorism. It seems, therefore, that, in order to avoid prosecution, the library must have some kind of blacklist of books—which would include, no doubt, atlases—which cannot be lent to anyone without positive vetting because otherwise the librarian is at risk of prosecution. Does the Minister agree?
	The combination of the very broad definition of terrorism and the inclusion of the recklessness test—even if it is subjective—means that the Bill will make illegal those statements that most of us believe are the legitimate exercise of free speech or at best will force those who are disseminating statements to prove that those statements do not represent their own views. The chilling effect of that is considerable. This is an entirely different situation from recklessness in driving offences. There is no right whatever to drive at excess speed. There is no balancing issue as there is here with questions of freedom of speech. By contrast, most of us believe that it is the legitimate exercise of the right to freedom of speech to support the political objectives of a militant group that is fighting a brutal and oppressive regime. The exercise of that right will, however, be seriously restricted under the Bill.
	Many things can be said with no intention of supporting terrorism in the United Kingdom or elsewhere but which could increase support for objectives of terrorists where the objectives are in themselves legitimate. To support independence for Chechnya is in itself as legitimate as to support independence for Scotland. The encouragement of legitimate objectives may encourage at the same time some people to adopt unlawful means of achieving those objects especially where legitimate means are forbidden to them. Most people would understand that, but it means that anyone who publicly supports independence for Chechnya is being reckless, because anything which increases support for the independence of Chechnya may well encourage unknown people to move from peaceful protest to violence.
	To make that an offence is an unjustified restriction on freedom of speech. It is not necessary or proportionate, as was made clear by the United Nations High Commissioner for Human Rights, Louise Arbour, in the letters that were sent to the Government on 28 November but not disclosed by the Government until 9 January this year. It is inconsistent with Articles 5 and 12 of the Council of Europe's Convention on the Prevention of Terrorism, which provides that incitement to commit a terrorist crime must be an offence, but the offence must be drafted with respect to the rights to freedom of expression and association. It is also inconsistent with the report on the Bill by our own Joint Committee on Human Rights, which states that the provision on the dissemination of terrorist publications is unlikely to be compatible with the right to freedom of speech in the absence of a requirement that such dissemination amounted to incitement to violence being both intended and likely to act as an incitement. To make recklessness a sufficient basis for the offence is an unjustified restriction of freedom of expression and unnecessary in defence of our national security. I beg to move.

Lord Rees-Mogg: My Lords, I am not a lawyer, and am not clear about the difference between subjective and objective recklessness; or, indeed, about the difference between the two amendments from either side. I may well be, however, the only Member of this House who would clearly have been at risk of this clause had this Bill been passed at the time.
	In the 1980s, I pursued the trade of an antiquarian bookseller. Amongst other material, we specialised in 20th century history, particularly that of the Soviet Union. I remember selling a number of books, including the early works of Lenin, which clearly acted—or might have acted—as incitements to commit acts of terrorism. Indeed, Lenin can be regarded as the godfather of terrorism as a political tactic.
	In particular, I remember that we had a copy of a book which we dealt in more than once: Moya Zhizn, the autobiography of Trotsky, first published in Berlin in 1931. I had a customer for this particular copy who will be somewhat remembered: Mr Robert Maxwell. I sold him a copy of Trotsky's autobiography, I now think, looking back on it, recklessly. That is to say that Mr Maxwell was widely rumoured to be connected with more than one foreign intelligence agency and was not a man, in general, of good or reliable reputation. So on the one hand I should have had concern about my customer and, on the other, Moya Zhizn is written, as one might expect, in Russian. I cannot read Russian, and I have no knowledge of what inflaming material Trotsky might have put into Mr Maxwell's mind had he read it. Nor did I know whether Mr Maxwell read Russian, although I think it quite likely that he did. What defence would I have had in those circumstances if I had been charged with recklessly selling something that was potentially an encouragement to terrorism without taking whatever safeguards—and I do not know what safeguards they could be—to satisfy myself that there was no more direct risk? Would that have been subjective recklessness or objective recklessness?

Lord Judd: My Lords, having participated in Committee when we discussed these issues, I join my noble friend Lord Plant—we are both Members of the Joint Committee on Human Rights—in saying how glad I am that the Minister fulfilled her undertaking to listen to what was said in those discussions in Committee and how warmly I welcome the inclusion of the concept of intent. Having said that, I hope my noble friend will forgive me if I make two observations because the context in which we discuss what is before us is as important on Report as it is at any other stage of the Bill.
	We are debating the Bill at a time when what is regarded as terrorism in the context of the Bill is recognised as contentious. The Government have appointed the noble Lord, Lord Carlile, to produce a report on what is terrorism and what the definition of terrorism should be. Therefore, we would do well in our deliberations to realise that we are moving forward with what should be done by the law about terrorism when we also recognise that there is a debate about what terrorism may, or may not, be. The noble Lord, Lord Goodhart, illustrated the point in what he said about Chechnya. To put it in layman's language, the issue remains unresolved for many people and what may be seen as terrorism by one person may, in a particular context of oppression, be seen as freedom fighting or a liberation movement by somebody else. That is true not just in history; it is true today as well.
	I wish to make another observation: while I underline how much I welcome the Government's move on intent, unlike my noble friend Lord Plant I still have a certain uneasiness on recklessness, about which I hope my noble friend will be able to reassure me. I am a layman; I am not a lawyer. Therefore, I am one of the people who must understand what is and what is not law. I am not one of the people who, with all the insight of lawyers' expertise, are making the law. I would have thought that commonsense would tell us that sometimes somebody will do something in good faith that subsequently, when he is confronted by all the implications of what he has done, he might, in retrospect, agree was reckless, but was not consciously reckless at the time at which he did it. Therefore, I am uneasy about the concept of recklessness being used without any qualification whatever about the mental attitude, the state of mind and the state of knowledge of the person who committed the offence at the time that it was committed. I hope my noble friend will say something about this and that she may indicate some way in which this point could be made clearer for the layman and the potential culprit.

Baroness Williams of Crosby: My Lords, I follow what has just been said by the noble Lords, Lord Judd and Lord Rees-Mogg, because I think all noble Lords welcome the Government's move on Clause 2 and want to help the Government in any way we can in picking their way through the extremely difficult conflict between freedom of expression and the need to protect ourselves sensibly against terrorism. However, may I echo what the noble Lord, Lord Judd, said about recklessness? I will add another thought to the reasons why what that would catch is still, I am afraid, somewhat unclear.
	In a letter sent on 3 January to a number of people who expressed concern about this Bill, particularly among the universities, the Minister of State at the Home Office, Hazel Blears, said:
	"As with obscene publications, libraries must act with due care in handling such publications and restricting access to them as they deem proper, in order that proper academic research is possible"—
	and I emphasise this next phrase—
	"whilst not allowing impressionable people to see such publications".
	With great respect to the Minister of State, who is able and competent, it is almost impossible to see how to interpret that under the general header of recklessness. Is it "reckless" if a library or university teacher behaves without, as in Mrs Blears' expression, "due care"? In almost any university in the land, by definition there are almost bound to be "impressionable people". At their best, that is exactly what students are.
	How, then, could a conscientious university teacher or librarian meet, at one and the same time, the rather more narrow explanation of recklessness that the Minister has so helpfully given us here and the implications of Hazel Blears' letter? With the best will in the world—and I wish the Government well in getting this Bill as right as we can—I simply cannot see how one can meet both requirements at the same time. They do not seem fully compatible.
	Although this is an extremely important issue, I will not detain the House long. However, I will go back for a moment to what is called the chilling effect. In some cases, the concept of recklessness can be defined in terms of negligence—a failure to take the action that one might in order to meet this Bill's requirements. Once into that, questions are raised about whether, for example, the librarian or academic teacher should attempt to screen his or her students, and we get into the area of whether he or she should have to operate self-censorship in order to avoid any possibility of being found guilty of recklessness. With great respect to the defences laid out, they still leave open the very troubling possibility that a number of people from these two professional groups would find themselves being accused of recklessness and having to defend themselves. Frankly, that is completely unjust to those professions and, even if they are eventually found to be innocent, it is bound to leave a whiff of criminality behind.
	The Liberal Democrats have the greatest willingness to behave responsibly because we have all at one time or another, either personally or generally, encountered the terrible consequences of terrorism. We will try if we can, during Report, to make the whole issue of recklessness as precise as possible. In that I echo the questions of my noble friend Lord Goodhart and the noble Lords, Lord Rees-Mogg and Lord Judd.
	I conclude by saying that, given the letter from the Minister of State at the Home Office, any help that the Minister can give us, whether via amendments or explanation to the House on how she would narrow and limit the concept of recklessness, would be extremely helpful. There is also the importance of being able to respond in good faith to the letter that my noble friend quoted from the United Nations High Commissioner for Human Rights, which indeed throws some doubt on whether, even with the amendments, we have met the requirements in the European convention or in the Council of Europe's covenant.

Lord Butler of Brockwell: My Lords, perhaps I may follow that by generalising the case described by the noble Lord, Lord Rees-Mogg. In his case, he had the advantage of knowing who the customer for the autobiography of Trotsky was, which may have made the culpability of the noble Lord greater, as he recognised. The job of a bookseller, generally, is to sell as many books as possible and to make books available to the public. It really is not the task of a bookseller to have to distinguish or discriminate between customers. Yet, the definition of recklessness here appears to make it an offence for the bookseller not to discriminate in that way. How otherwise could the bookseller be sure that customers would not include someone who would either be moved to terrorism or use the book for the purposes of terrorism? I think that, in those circumstances, if I were a bookseller, without the advantage of knowing the identity of my customer, I would be concerned about that.
	Similarly, the task of a librarian is to make the books in the library available to students or others who want to use them. It should not be, as I think this amendment implies, the task or duty of librarians to have to discriminate between borrowers in order to satisfy themselves that those borrowers do not include people who might be moved to terrorism or use the book for the purposes of terrorism. My concern about these amendments is that, as other noble Lords have said, unless greater clarity can be achieved, they will make people in the perfectly honourable and normal businesses of librarianship or bookselling uncertain about whether they are at risk of breaking the law.

The Lord Bishop of Chester: My Lords, the debate this afternoon has surely demonstrated that the concept of recklessness is unclear. I listened very carefully to the rather rapid-fire speech with which the Minister introduced the debate. As I recall, she said that we would all agree that those who "knew that they were likely to encourage terrorism should be caught by the provisions of the Bill". As I understand it, the noble Baroness was trying to explain what was meant by the concept of recklessness. If that is what she means by recklessness, why not put those words into the Bill rather than the much vaguer word "recklessness"?
	This is a very sensitive Bill; it could be interpreted by the courts in very sensitive ways. If the Minister means by "recklessness" that people knew they were likely to encourage terrorism, why not state it in those terms, which are much clearer, more precise and easier for the courts to interpret?

Lord Thomas of Gresford: My Lords, the debate about recklessness was in these terms originally. "Objective recklessness" is when a person does not give his mind to what is likely to happen, although a reasonable person would realise that some harm would follow from his act. If a person does something which is harmful without giving his mind to the consequences, and a reasonable person would have realised it would cause harm, that is "objective recklessness". That was the decision in Caldwell, which the Judicial Committee of this House set aside a year or two ago.
	"Subjective recklessness" is where a person realises the consequence of his act yet goes on to carry out that act, although he may not intend that those consequences should follow. To put it into this context—and it is a very difficult concept that lawyers have had to struggle with over many years—let us suppose that there were a manual for making a bomb. If a person were to pass that manual to a person whom he considered could potentially act upon it and realises that he may be encouraging him to make a bomb, then he would, in one sense, be subjectively reckless, but I am quite sure that he would be held guilty of intending that to happen if he knew that the person had it in mind to act as a terrorist. But let us suppose that it was a book on chemistry. A bookseller, librarian or university lecturer knows that of course it is possible to use a textbook on chemistry to construct a bomb. He has no intention that the person should construct a bomb and certainly does not care whether he constructs a bomb. He obviously would care were that to follow.
	The clause sets out a criminal offence, punishable by seven years' imprisonment. It would cover a person who did not actually commit a terrorist act but said something or passed on a terrorist publication such as a book or a pamphlet. Is it right that a person should be guilty of a criminal offence carrying seven years' imprisonment if he does not intend the consequences that may follow? "Recklessness" is a difficult concept, and I cannot see that it is right, as my noble friend has said, for a person to be subjected to a lengthy sentence of imprisonment when he did not intend the consequences that he foresees.

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for his valiant attempt to differentiate between "subjective" and "objective" recklessness. I will not say that I absolutely agree with that definition but I think it is within the right ball park.
	I agree with the explanation of the noble Lord, Lord Kingsland, in relation to recklessness. Quite often "intent" which has a subjective recklessness element is very similar to "intent" simpliciter. In making that more accessible to those Members of Lordships' House who may need it to be, perhaps I may say simply to the noble Lord, Lord Rees-Mogg, that, notwithstanding the indication of the noble Viscount, Lord Bledisloe, about the way in which he may be treated, I think that he would be not guilty.
	I do not think that the circumstances to which the noble Lord, Lord Goodhart, referred cause anxiety. The noble Lord, Lord Thomas of Gresford, is right. The difference between "subjective" and "objective" is this. "Objective" is what a reasonable person would do or expect. A "subjective" test is what this particular person thought or believed at the time, not what any other sane, rational person would have thought. It is what this person thought that makes it subjective.
	I confess to a certain degree of naivety. I had hoped that these amendments would give a great deal of pleasure to this House. I thought that I would be met with "hurrahs". Perhaps I may reassure the noble Baroness, Lady Williams, about the letter written by my right honourable friend Hazel Blears. That letter was sent before we tabled the amendments which your Lordships now discuss. We have provided for intent with recklessness and the generalised defence of non-endorsement. The noble Baroness and noble Lords will know that we have been giving anxious and proper consideration to our response to the concerns about Clauses 1 and 2 properly expressed in the House.

Baroness Scotland of Asthal: My Lords, there is no criticism of the noble Baroness for raising the matter: it is right that she should do so. I share this with the noble Baroness. I had not had sight of that letter, did not know of its content, and would not otherwise have been aware that that was a concern operating in the minds of the noble Baroness and others. It is right, therefore, that we have an opportunity to address that. Work was ongoing as to the nature of amendments, and when and if they should be laid, up until the time they were laid. I assure the House that we laid those amendments as swiftly as we were able bearing in mind the contemplation.
	Everything I said in Committee relating to the need to allow proper academic debate, proper learning, in our institutions stands. I repeat the assurances I gave to the noble Baroness, Lady Carnegy of Lour, that the department of St Andrews which specialises in teaching the nature of terrorism and its effects would not be improperly inhibited from so doing, and I repeat my assurances in relation to the libraries and the booksellers—although not verbatim because I am sure noble Lords do not wish to continue this debate for the six hours it would take me to go through all that I said before.
	So all that lays good. These amendments took on board the mischief which noble Lords had identified; the need to have proper debate maintained in our universities, which are of such high quality; the issues raised by my noble friend Lord Desai; and the issues also raised on our Benches by the noble Lord, Lord Parekh, and a number of others. I am very grateful for the endorsement given today by my noble friends Lord Plant and Lord Rea, because noble Lords know that they shared the anxieties of this House. We responded to their anxiety. I mentioned my noble friends Lord Eatwell and Lady Warwick too in relation to those issues. Their concerns galvanised us to think how better we could respond. I make it clear it that we do not suggest that the clauses that were previously in the Bill did not deliver what noble Lords wanted—we believe that they did—but noble Lords demanded greater clarity, to put the matter beyond dispute. We believe that the amendments we have now brought forward do that. That is the reassurance that noble Lords wanted and, frankly, that is the reassurance which we were minded to give because we believe that those who have genuinely expressed those concerns are at one with us in our intent. Nobody in this House is subjectively reckless about what we are trying to do. I hope that I have reassured my noble friends and other noble Lords, including the noble Lords, Lord Dearing and Lord Butler, that we have done that which we needed to do to make the matter clear.
	My noble friend Lord Judd gave examples, as did the noble Lord, Lord Goodhart. In none of those examples, for the reasons that he identified, did I think that the individuals would be at risk. For the sake of completeness, it may be helpful if I deal with just a few of those of those examples. The noble Lord, Lord Goodhart, asked about a newsagent who was not aware of the content of a magazine. In that case, he is not being reckless so no offence is committed. What about Internet service providers who do not monitor what goes on? That was part of the question of the noble Lord, Lord Dearing, as well as of that of the noble Lord, Lord Goodhart. They too are not committing an offence. We discussed on the previous occasion what they can do to remove improper material from their websites in a way that is just. The BBC would be able to rely on the non-endorsement defence. A librarian who gives out a chemistry textbook would not be guilty of an offence because a chemistry textbook would not be a terrorist publication under Clause 2(5)(b). For a publication to be a terrorist publication, it has to be material of use to terrorists. It must be clear that the material that was of use to terrorists was included in the publication wholly or mainly for the purpose of being so useful. That is not the case with chemistry textbooks.
	I understand your Lordships' anxieties. It is right and proper that they should be explored, but it is also right and proper to say that they have no basis in fact. We have therefore come to a conclusion which I hope will give us a sense of comfort, because those who said that we needed to make sure that the legislation was clear were right. We have now responded to them. I hope that noble Lords will therefore feel able to accept that the position adopted by Her Majesty's Loyal Opposition—that is, supporting these amendments—is the correct and proper position.

On Question, Whether the said amendment (No. 4A) shall be agreed to?
	Their Lordships divided: Contents, 86; Not-Contents, 190

Lord Lloyd of Berwick: My Lords, the purpose of the amendment is to leave out Clause 1(3). That subsection creates the offence of the glorification of terrorism.
	It is helpful to look back on how we got to where we are in relation to this provision. Subsection (3) was originally a separate offence—then Clause 2. It applied to anybody who glorified acts of terrorism, whether past, present or future. Events that occurred more than 20 years ago were exempt, unless they were put on a list to be compiled by the Secretary of State. The origin of that unusual offence was a single sentence in the Labour Party manifesto. However, the manifesto did not explain how you could create a criminal offence out of something so broad, so vague and so nebulous as the idea of glorification without—this is the important point—infringing freedom of speech.
	Encouragement of terrorism, whether direct or indirect, was covered—as it now is—by a separate clause, Clause 1. The purpose of that clause, as explained in the Explanatory Notes, was to enable us to comply with Article 5 of the Council of Europe Convention on the Prevention of Terrorism.
	There was no definition of indirect encouragement and there was no reference in the original Clause 1 to glorification. Clause 2 attracted a maximum penalty of five years for the glorification offence, and Clause 1, concerning the encouragement offence, a maximum of seven years.
	The glorification offence attracted a good deal of what one could call ridicule as soon as it was published. It quickly became apparent that it would be unworkable in practice, and so glorification as a separate offence was then abandoned. Instead, it was tacked on at the end of Clause 1, dealing with the encouragement offence, where we now find it in subsection (3). My argument will be that subsection (3) has all its original vices as a separate offence in that it is much too broad and much too vague, but there is now an additional objection: in its new context it is very difficult to understand at all and almost impossible, one would imagine, for a judge to explain to a jury. So my suggestion is that subsection (3), which was attached to Clause 1 only at a very late stage, should now be detached and confined to what I believe is called the recycle bin, but I hope that it will not be recycled in some other form.
	I now turn to views expressed during Second Reading. Almost everyone who dealt with the glorification issue condemned it as being incomprehensible or unworkable or both. I shall never forget the scathing attack—I think that that is the right adjective—advanced by the noble and learned Lord, Lord Morris of Aberavon. Many others spoke to the same effect and I listed them all during the Committee proceedings. Some noble Lords referred to the report of the noble Lord, Lord Carlile, in support of glorification, and I shall, if I may, come back to that a little later. But he did not touch on glorification in his Second Reading speech. Otherwise, there was nothing in favour of glorification, and the Minister did not deal with it at all in her reply.
	Between Second Reading and Committee occurred a very important event—the publication by the Joint Committee on Human Rights of its Third Report of 28 November. The committee formed the view that glorification is too vague to form the basis of a criminal offence, and I will trespass on your Lordships' patience to read paragraph 27:
	"The first source of legal uncertainty in the definition of the offence of encouragement of terrorism in clause 1 of the Bill is the inclusion of 'glorification of terrorism' within the encouragement offence. 'Glorification' is defined in the Bill to include 'any form of praise or celebration'. The legal certainty concern is that terms such as glorification, praise and celebration are too vague to form part of a criminal offence which can be committed by speaking".
	There could be nothing clearer than that. The committee came back to the same point when it dealt with Clause 21, to which we shall come later—the new clause providing for a new basis of proscription. It said:
	"In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 [of the convention] or the right to freedom of association in Article 11 . . . for the same reasons as those given above in relation to the proposed new offence of encouraging and glorifying acts of terrorism".
	That is exactly what Members of this House were saying in the course of the Second Reading debate.
	That is a view expressed by the Human Rights Committee, and it is a view that has been expressed by numerous other bodies. It has been expressed by Liberty and by Justice and in an excellent paper produced by the Mayor of London. I have never known a case in which the commentators have been so united and unanimous in the views that they have expressed about any clause in any Bill before your Lordships' House.
	More important than all of that is the letter written by Louise Arbour, a very distinguished Canadian judge and a member of the Canadian High Court. She is now the High Commissioner for Human Rights. The letter was written on 28 November, but for some reason it became available to us only on 9 January. No personal blame attaches to the Minister because she told us that she simply did not know of its existence until 9 January. The letter is from Louise Arbour to our ambassador. I shall read two or three paragraphs:
	"Clauses 1 and 2 are of concern because they fall short of the requirement of 'actual intent' required to prove guilt for serious criminal offences".
	Of course, that has now happily been covered by the amendments put forward at a very late stage.
	"The current formulation of clause 2 in particular, suggests that a person could be found guilty of having committed the offence of 'dissemination of terrorist publications' even if s/he had no intention of doing so".
	This is the important point for the purposes of this amendment:
	"Additionally, the scope of clauses 1 and 2 would appear questionable even in the light of the limitations provided for in Article . . . 10 of the ECHR. The draft offence contained in clause 1 fails to strike a balance between national security considerations and the fundamental right of free expression. Clause 2 fails to demonstrate proportionality between the objective of preventing terrorism and the proposed offence of criminalising the dissemination of any material which terrorists may find useful.
	"Clause 21 provides the 'grounds of proscription' of organisations which promote or encourage terrorism. This clause as currently drafted is too broad as relates to the offence of 'glorification'".
	I need not read any more.
	I now come to the views expressed by the noble Lord, Lord Carlile, to which I said I would return. I have great sympathy for him in having to deal with the question in such extreme haste. I think he would say that this is not a matter on which his particular expertise gives him any great advantage over the rest of us. Ultimately, of course, it is a matter for the courts, as we saw in the Belmarsh case.
	Perhaps I may read what he said in paragraph 23. It is right that it should be read, as he is under a self-denying ordinance not to take part in this stage of the proceedings.
	"In my view this proposal in its revised form is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context. The balance between the greater public good and the limitation on the freedom to publish is no more offended by this proposal than it would be by, say, an instruction manual for credit card fraud were such to be published. I believe that it is Human Rights Act compatible".
	If the noble Lord had been aware of the full weight of opinion in favour of the view that the clause is not compatible, he might have reached a different conclusion.
	I find it very difficult to say anything in favour of subsection (3). The Minister said that it would be useful in providing what she called "guidance" to the court as to what Parliament has in mind. That is a strange way of creating a brand new criminal offence. My own view is that subsection (3) will have to go, first, because it is unnecessary. We do not need it to meet our international obligations. Cases of provocation, encouragement, or incitement—they all mean exactly the same—are amply covered by our existing law, as is shown all too clearly by the case of Abu Hamza, which is currently before the criminal courts.
	Secondly, it will have to go because it is damaging to community relations for all the reasons given on so many occasions by the noble Lord, Lord Ahmed. We should listen very carefully to what he says. So far from adding to our safety—and I do not think it will—it may in the end prove "counter-productive"—the phrase used by the noble Lord, Lord Condon, in another context.
	Thirdly, it is quite clearly incompatible with Article 10. With respect to the noble Lord, Lord Carlile, I must say that I cannot envisage our courts holding that the glorification offence is a proportionate response to the threat—everyone accepts that there is a threat—from which we suffer. The courts will ultimately decide. When the first person is convicted under this provision, that conviction is bound to be appealed and will come before the courts. The consequence will be as I have predicted. The provision is incompatible, but Clause 1 can so easily be made compatible by simply omitting subsection (3).

Lord Kingsland: My Lords, Amendment No. 9 is in my name and those of my noble friend Lord Henley and the noble Lord, Lord Goodhart. As your Lordships can easily discern, the amendment would also leave out subsection (3), but would in addition include an alternative definition of the offence of indirect encouragement. I will swiftly encapsulate the history of the word glorification, which is at the root of Clause 1(3). As your Lordships will recall, together with condoning, glorification began as a self-standing offence in the Government's manifesto at the May election. By the time the Bill came along, the word "condoning" had been dropped altogether. "Glorification", instead of defining an offence, became a word explaining an offence. The new offence was that of "indirect encouragement" contained in Clause 1(1). The explanation of "indirect encouragement" is in Clause 1(3).
	We have no objection whatever to the new offence of "indirect encouragement". We support the Government in that. Our only concern is with the way that it is defined. It is not with "glorification" itself, but the way in which it is defined and is used in Clause 3. I suppose it can be said at the outset of this debate is that our objection to what the Government have done is not one of principle, but one of drafting.
	One view that has been ventilated is that the interpretation of an offence of "indirect encouragement" should simply remain with the judge, and that there should be no additional guidance for the judge in the Bill. I respectfully disagree with that, which is why we have tabled Amendment No. 9. We have provided an alternative definition to the Government's definition in subsection (3):
	"For the purposes of this section"—
	that is, Clause 1—
	"'indirect encouragement' comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it".
	In my respectful submission, that encapsulates exactly what ought to be encapsulated in the notion of an offence of "indirect encouragement".
	Why is the Government's draft inadequate? I could not have put it more eloquently than the noble and learned Lord, Lord Lloyd of Berwick. It not only offends Article 10, it also offends Article 7 of the European Convention on Human Rights. Indeed, I respectfully submit that, above all, a contravention of Article 7 is the most damaging and dangerous aspect of subsection (3). Article 7 requires certainty from the legislator. Article 7 requires that when somebody is considering an activity, it should be reasonably clear to that person before he engages in the activity that, if he does so, he will be committing a criminal offence. With great respect to the Government, I do not see how anybody contemplating the text of subsection (3) could know whether he was going to commit an offence or not. That is at the root of the problem that the Government face, and why we have moved Amendment No. 9.

Baroness Scotland of Asthal: My Lords, that is absolutely true, because others have done it before me. The amendments in this group fall into two categories. One category of view, expressed and expanded with such great depth and elegance by the noble and learned Lord, Lord Lloyd, is that the Government's amendments are useless, pointless, confusing and make no difference. I adopt the short form, adopted the noble Lord, Lord Goodhart; I think those words were his way of describing it. A number of noble Lords who have spoken join him in that view. My noble and learned friend Lord Morris of Aberavon, although he said so rather more elegantly, thinks that those words are correct. Others, particularly the noble Lord, Lord Kingsland, who said so with his normal telegraphic style, agree with the substance but not the form. He agrees with the purport behind the drafting and the need to look at this issue, but does not believe that we have drafted the glorification provision in a felicitous way.
	I was happy that, just by chance, the noble Lord, Lord Carlile of Berriew, was in his place when the noble and learned Lord, Lord Lloyd, made his remarks in support of this amendment. I think it is very important that we remember the clear advice he gave, accurately read out and to be found in paragraph 23 of his report, where he stated very clearly his view that the proposal the Government are minded to advance is correct because of the real and present danger of radically minded young people being persuaded towards terrorism by apparently authoritative tracts, wrapped in a religious or quasi-religious context.
	It is very important that we bear that sound advice in mind when looking at this provision and whether its utility is actually made out. I absolutely understand the concerns of both my noble friend Lady Kennedy and the noble Baroness, Lady Williams, when they say, together with the right reverend Prelate, that others look to how we present these issues in the UK and may seek to emulate what we do here. That position has prevailed for a number of years. I can reassure my noble friend Lady Kennedy and the noble Baroness, Lady Williams, that we are conscious of our responsibility to play our part as members of the international community.
	Therefore, we bring forward these provisions with a proper understanding that the constraints imposed by the Human Rights Act and other legislation should bite on this. We bear those in mind, but we come back to the idea of proportionality, of balancing—something that we have been struggling with throughout this Bill. We, of course, come down on different sides. Her Majesty's loyal Opposition say that it is right in principle to address this issue, but wrong in the form taken; others say no.
	It is very important that when we consider this issue we look at what the Bill in fact provides, as opposed to what some may think it provides, and look at it in context. If one looks at, for instance, the promotion of 4 July and American independence, it is true to say that the king who was then on the throne has now sadly departed and things have moved on. We have to look at context. Amendments that seek to remove the various references to glorification in Clauses 1, 2 and 3 and the consequential provisions in Clause 20 are of the same effect as the ones tabled in Committee. The Government's position remains the same and is clear. The Government do not believe that it is acceptable that people should be allowed to make statements glorifying terrorism and in so doing make it more likely that their audience will themselves commit acts of terrorism. The reasons why we do not think it is right are the same as those set out in the report of the noble Lord, Lord Carlile of Berriew, as our reviewer.
	I also think it is right for me to be clear about what the Government are proposing in Clause 1. It will be a criminal offence to glorify terrorist acts in such a way that others could reasonably take it as a direction for them to emulate those acts. Simply showing understanding for why a person commits a terrorist act will not be sufficient to constitute a criminal offence. Simply condoning terrorism will not be sufficient to constitute a criminal offence. Even simply glorifying terrorism will not be sufficient to constitute a criminal offence. It is only when a statement is made that glorifies a terrorist act, to the clear extent that others will reasonably infer that the act is being glorified in order for those persons to emulate that act in existing circumstances, that it will constitute a criminal offence. One has to emphasise the "existing circumstances".
	There are a number of elements here. First, the act in question has to be a terrorist act or a convention offence. We do not think that some of the suggestions made at an earlier stage in the debate—Robin Hood, for example—would be a present circumstance that would constitute a terrorist act. Secondly, a statement would need to be made to members of the public. We are not talking about thought crime or private conversations in this regard. Thirdly, the act has to have been glorified. There has been some discussion about what the word means, but it means simply what the Oxford English Dictionary says it means. To glorify is to describe or represent as admirable, especially unjustifiably or undeservedly. We believe that this is clear enough.
	Fourthly, the act would need to be glorified in such a way that members of the public could reasonably be expected to infer that the glorified conduct should be emulated by them. This is crucial. The audience to the statement must be able to infer reasonably that they are being asked to emulate a terrorist act. Therefore, we are not talking about the celebrations for Bastille Day or 4 July, as it would not be reasonable for the audience to infer that the participants in, for example, Bastille Day celebrations, were urging them to commit terrorist acts. The likely effect on the audience has to come into play.
	Fifthly, the public would need to be encouraged to commit that act in existing circumstances. Therefore, the glorification of the American Revolution, for example, is hardly going to be reasonably inferred as encouragement to others to terrorist acts against the British Empire or King George III who, as we all know, is now sadly deceased. The political disagreement in that instance is not, we think, a live issue. Finally, we need to be clear that this offence can be committed only either where someone intends to encourage others to commit a terrorist act, or where they are reckless as to whether or not such a statement is likely to be so understood.
	Those provisions are, I respectfully suggest, relatively easy to understand and apply. I therefore hope that noble Lords will reflect that this does what the noble Lord, Lord Kingsland, wants; he says that he agrees in principle. I thank him for that and for the clarity with which he represents his party in this regard, but I say to him that the draftsman has expressed what we need in a way that complies not only with that intent, but with the commitment the Government gave to the people of this country in relation to it.
	The amendments rightly point out that there are references to glorification elsewhere. I hope that I have dealt with that. Clause 2(6) makes it clear that in answering questions about how a statement is likely to be understood and what the public can reasonably infer, the court must have regard to the contents of the statement or the publication as a whole and the circumstances of its publication. The test is not quantitative but qualitative: it is whether the surrounding material and context of the statement indicate that the whole statement does not have the effect that a mere extract which may be objectionable would have. That provision is replicated in Clause 1(4).
	We believe that, for the reasons I have given, the concerns that were expressed by noble Lords are met by the way in which the provisions have been drafted. Although the noble Lord, Lord Peyton, would like the whole of this subsection removed, in order to protect appropriately the citizens of our country, I regret that even his own party is likely to disappoint him in that regard. I invite noble Lords to say that they are content with the explanation that I have given and are reassured sufficiently to enable us to allow this part of the Bill to remain unamended.

On Question, Whether the said amendment (No. 8) shall be agreed to?
	Their Lordships divided: Contents, 270; Not-Contents, 144

Baroness Scotland of Asthal: My Lords, in moving Amendment No. 15, I speak also to Amendment No. 16 on Clause 1 standing in my name.
	As we have discussed, I tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, mirroring the same test as exists in Clause 1. I also tabled amendments to modify the wording of Clause 1. They do not change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as that in Clause 1, to the extent that this is possible for a different offence.
	These amendments relate to the defences in Clauses 1 and 2. I shall quickly summarise how those defences work. Clause 1 creates the offence of encouragement to terrorism. Under it, it will be an offence for a person to publish or cause another person to publish on his behalf a statement when they either intend that it should be understood as an encouragement to terrorism or are reckless as to whether it is likely to be so understood. The clause will use the subjective definition of recklessness as set out in Regina v G.
	Clause 2 creates the offence of dissemination of terrorist publications. An individual is considered to have committed an offence if he disseminates a publication intending that those to whom it will become available will be directly or indirectly encouraged to commit, prepare or instigate acts of terrorism or intending that they find the information to be useful in the commission or preparation of terrorist acts; alternatively, the individual who is disseminating the publication is considered to have committed an offence if he is reckless to the possibility that they will be so encouraged or find the information so useful. In deciding whether a publication amounts to a terrorist publication, the court must take into account the context of its dissemination at the time of that conduct and the contents of the publication. It is currently a defence for a person who is charged under Clause 1 to show that he published the statement in respect of which he is charged or caused it to be published only in the course of the provision or use by him of a service electronically; that the statement neither expressed his views nor had his endorsement; and that it was clear in all the circumstances that it neither expressed his views nor had his endorsement.
	Amendments Nos. 15 and 16 would give effect to the changes which I signalled in Committee. Amendment No. 15 would generalise the defence in Clause 1—that is, that the person who published the statement did not endorse it and that it was clear in all the circumstances that he did not endorse it—so that it is available to everyone and not just to those who are providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, there is no reason why a defence should be available to those who commit the offence intentionally.
	Amendment No. 16 is a technical amendment. It clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. The defence in Clause 2(9) is similar to the defence in Clause 1(6). It is currently a defence for a person charged under Clause 2 to show that he engaged in the conduct described in Clause 2(1)—namely, the dissemination of a terrorist publication—only in the course of the provision or use by him of a service electronically; that the publication so far as it encouraged terrorism neither expressed his views nor had his endorsement; that it was clear in all the circumstances that it did not express his views nor had his endorsement; and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. Again, we have brought forward amendments to widen this defence so that it extends to all those who can prove that material contained in the publication, in so far as it encouraged terrorism, neither expressed their views nor had their endorsement, and that it was clear in all the circumstances that this was so. In the context of including an intent test in Clause 2, we have also brought forward amendments to remove the defence from those who disseminate information of use to terrorists. With the intent test in place, this defence is no longer necessary.
	Under Clause 2(8), it is also a defence for a person who is prosecuted under Clause 2 to show that he had not examined the publication in respect of which he had been charged; that he had no reasonable grounds for suspecting that it was a terrorist publication; and that the matter contained in the publication did not have his endorsement. In the light of the inclusion of an intent test in Clause 2, we have brought forward amendments to remove this defence from the Bill.
	Clause 3 provides a power for a constable to issue a notice to the effect that the content of an electronic service appears to him to amount to encouragement to terrorism or information of assistance to terrorists. A person who receives such a notice must ensure that the offending material is no longer available to the public within two working days. If a person fails, without reasonable excuse, to comply with the notice, he will be deemed to endorse the material in question and therefore will not be able to take advantage of the defences in Clauses 1 and 2. A person who receives a notice under Clause 3 will be responsible for repeat statements—in other words, statements that are the same as the statement to which the original notice related—unless he can show that he had taken reasonable steps to stop repeat statements appearing. This defence is set out in Clause 3(5). It is not a freestanding defence; it forms an element of the defences in Clauses 1 and 2.
	Bearing in mind that Amendment No. 14 of the noble Lord, Lord Goodhart, was not moved, and that other amendments in the group have not yet been moved, I do not propose to deal with any further amendments unless noble Lords indicate that I have somehow misunderstood the way in which we are now dealing with these amendments. I beg to move.

Lord Kingsland: My Lords, your Lordships will recall that, at the end of the Committee stage, the Liberal Democrats and my own party were pressing the Government to introduce intent into Clause 2. We then tabled Amendment No. 17 to that effect. Last Friday, which was the closing day for amendments, the Government, somewhat to our surprise, although delight, tabled their own amendment on intent to Clause 2. Once again, the differences between us and the Government are not differences of principle; they are differences of drafting. It is in that context that I wish to promote Amendment No. 17.
	As your Lordships can see from the Marshalled List, Amendment No. 17 would amend the Bill so that the offence would be to disseminate a terrorist publication,
	"with the intention of directly or indirectly encouraging . . . terrorism".
	In the Government's recently tabled alternative provision, which flows over two amendments, Amendments Nos. 19 and 20, the definition of intent is,
	"an intention that the persons to whom the publication is or will become available . . . should include persons who will be directly or indirectly encouraged . . . to commit . . . acts of terrorism".
	In our view, the Government's definition is crucially defective in at least one respect. It is difficult to see, for example, how a librarian in a public library or university could possibly know whether a large pool of potential borrowers includes people who would be so encouraged. The key question for your Lordships to determine is what "should include" means in this context.
	I recently received a communication from an organisation called Universities UK, which gave a graphic example of the problems that are likely to confront librarians in this context. Consider the position of the British Library. The books on the shelves are available to everybody who lives in the United Kingdom. We can be certain that there are people in the United Kingdom who could find information in standard chemistry books useful in making bombs. Therefore, by intending to make a standard chemistry book generally available, the librarian would appear to be guilty of the offence as defined by the Government's amendments. Why is that? It is because if the librarian knows this but does nothing about it, he could be said to be reckless as to whether one or more of those who would borrow and read the book would be among those who could be directly or indirectly encouraged to commit acts of terrorism.
	That is why, I suspect, the Government have chosen to keep part of Clause 2(9) as a defence to someone so accused. In these circumstances, the individual will not be guilty if he can establish on a balance of probabilities either that he is not aware of what is in the publication or, even if he is aware, that he would not have endorsed it. Yet why should somebody be placed in this position, having to wait until they are prosecuted, then raising a defence on the balance of probabilities that they are innocent? The proper position should be that intent be established by the prosecutor in the first place. I beg to move.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for setting out so clearly her continuing concerns. All the concerns she has enumerated are met by these amendments. The purpose of them is to put beyond doubt that the concerns the noble Baroness has outlined are without foundation.
	The issue with government amendment No. 40 was that we were conscious we needed to deal with each and every anxiety that has been expressed. Therefore, not only did we want to make it clear that the offence would not be made out in the way that was worried about, but that even if anyone should think that it might be, which is not admitted, you would have the defence in government amendment No. 40. This is belt, braces, garters and anything else you need to be assured that this will work.
	I shall deal with why we prefer our amendment. Those drafting this Bill were given clear instructions that there had to be clarity and that each amendment had to be consistent with the other so that they fitted. I understand that amendment No. 17 of the noble Lord, Lord Kingsland, seeks to achieve precisely the same as the Government's amendments. The difference between us is that we maintain that the Government's amendments are internally consistent with the other group of amendments we have drawn up, and, for that reason, need to be preferred.
	Let me seek to give the clear assurances that noble Lords seek, before dealing with the difference I say there is between Amendment No. 17 and our amendments. The formulation of the Government's amendments comprising the intent test includes the requirement that the person intended that the audience of the document's dissemination should include those who will be directly or indirectly encouraged. That implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination. The assurance about the specific intent sought by the noble Baroness is there. If a person is to be prosecuted on the basis that they are reckless as to the effect of the publication, they will have the necessary mental element—if it can be shown that they knew the content of the publication, and they were reckless as to whether or not the people in the audience could include persons who would be encouraged to terrorism. If a person knows the content of a publication, or it is so lurid or so notorious that they cannot have failed to realise its content, they will commit the offence recklessly if they supply it and it is reasonable that access to such publications should be restricted.
	Libraries take care with pornography, and it is reasonable to expect them to take care with publications that encourage terrorism or are useful to terrorists. Those are specific documents, not the issues the noble Baroness spoke about, such as The Anarchist's Cookbook. I do not know whether she was telling us we should all go out and buy it, because she advertised where we could do so. The example she gave would not be caught by this Bill, as it was not the intention of the person selling the book that there would be terrorists in the audience, and the whole point was that these terrorists would get the book and then use it. That was not the seller's intent, and therefore they would not fall within this construct we have put in.

Lord Goodhart: My Lords, I am sorry to intervene again. I think the Minister is incorrect in suggesting that our amendment does not cover that. We say in what is now Clause 2(1), where it says:
	"A person commits an offence"—
	we having put in our definition of the offence—
	"if he disseminates a terrorist publication".
	The rest of Clause 2(1) is a definition of what constitutes dissemination, which includes having a publication in your possession with a view to passing it on to someone else.

Baroness Scotland of Asthal: My Lords, I need only say that the noble Baroness's concerns have been registered. Indeed, the noble Baroness was right to make reference to my noble friend Lord Eatwell, who has been vigorous in his pursuit of the interests of the British Library and other universities and libraries. We believe that the amendments that we have now put forward comprehensively put the British Library in a situation where it needs fear for nothing in relation to this Bill. We really think that the amendments do that. We have already talked about intent and recklessness in relation to Clause 2. As was requested, it means that libraries will not be caught by the offence. However, we are also seeking to generalise the defence in Clause 2(9). That should demonstrate absolutely that the offence will not damage the interests of copyright libraries or any other libraries. I am confident that that satisfies the concerns of those who spoken with such passion on behalf of the British Library, which is one of the libraries that should be applauded for the work that it does. I assure the House that, in our view, this amendment is wholly unnecessary.

The Lord Bishop of Winchester: My Lords, before the Minister sits down, in light of what she has just said and of what the noble Baroness said with such clarity, why would it not been admissible or wise—the Minister spoke earlier about belts, braces and garters and so forth—to put this on the face of the Bill, granted its importance?

Baroness Williams of Crosby: My Lords, I apologise because the hour is getting late, but I have one further question. Does the Minister agree that the position of the deposit libraries with their specific legal obligations is not the same as that of all the other libraries? I do not wish to do anything other that protect all libraries, as I am sure the Minister does too, but these particular libraries have a legal duty laid upon them which is distinct from that of most other libraries because they are deposit libraries and because specific Acts of Parliament have been passed in their respect which have made specific obligations on them that are not legally shared by all other libraries. That is the only reason why I moved this amendment. Given their exceptional position, might what the right reverend Prelate said be considered a little before we finally conclude on this Bill?

Lord Oakeshott of Seagrove Bay: My Lords, I am going to start—basically because he has stolen quite a lot of my speech and I pay tribute to him for that—with the speech of the noble Lord, Lord Whitty. He gave us a frankly devastating account of why—if I may sum up his analysis—housing is the black hole at the heart of new Labour's social policy. That speech should get the widest possible circulation, and I will be commending it warmly to the Liberal Democrat press office in the morning. I say, "Come and join us". My noble friends Lady Scott and Lord Greaves made powerful speeches based on facts and their own deep knowledge of how councils actually work. This House is lucky to have their expertise, and the Minister should take their criticisms, and those of her noble friend Lord Whitty, very seriously indeed.
	The Government have bought Kate Barker's fatally flawed analysis of housing affordability and what drives house prices, but they and she miss the key point. Between 150,000 and 200,000 new houses for sale have been completed every year since the 1950s. That total has been very stable over the past 20 years. The flow of new social housing bought for rent by the public sector is now down to a pathetic trickle. In 1996–97 when the Government came to power, registered social landlords and local authorities completed 32,489 permanent dwellings. Last year it was down by one-third to 22,823. It was running at around 150,000 each year as recently as the late 1970s, certainly well within my working memory when I was on Oxford City Council's housing committee and was standing for Parliament in the new town of Crawley. As the noble Lord, Lord Best, pointed out, total housing completions today are at the same level as in the 1920s, and barely half the level of the 1970s.
	If we are serious about tackling homelessness and housing crises in the high stress areas of London and south-east England in particular, we must deliver far more affordable housing directly at the point of need. Of course increasing supply ultimately affects price, but so does reducing excess demand. There is not a shred of evidence that spraying estates of new executive boxes at £250,000 or £500,000 a time all over the green belts and flood plains of southern England will house key workers for our creaking public services or reduce the rate of house prices over the long haul. Barker's key mistake is to assume that only building new homes for sale reduces house price growth.
	Building new social housing meets housing demand more directly. Much of the upward pressure on house prices comes from people being forced deep into debt to buy because they can find nothing to rent. No surprise there, of course, because new affordable housing has dried up and so much social housing has been sold off since 1979. My noble friend Lord Bradshaw made that point particularly strongly, with the expertise and commitment he always brings to this House.
	Even with her unhealthy concentration on house building for sale, Barker still says that there is a shortfall of between 17,000 and 23,000 a year in new social housing completions. But the Government are building only 10,000 a year more and, in their Pre-Budget Report response in December, they made it clear that the homeless will have to wait until the 2007 Comprehensive Spending Review before there is any increase even in that miserable figure. Frankly, the Government's so-called market affordability goal for house prices is far too vague. It will not work and it does not deal with the real problems of affordable housing to rent, not just to buy, and homelessness.
	I conclude by giving two figures, of which the Government should be ashamed. Some 128,000 households were accepted as homeless and in priority need in 2004. That is an increase of a quarter over the Tories' last year in office. Households in temporary accommodation in England have doubled from 45,000 in 1997 to 101,000 today.
	The Government have decided that it is not sufficient to have a roof over our head, but we must own it. Why is choice, Tony Blair's holy grail, in every vital service except housing?

Baroness Andrews: My Lords, it has been, predictably, an interesting debate for many reasons. It is good to see the Liberal Democrats turning out in force to support the attack on the Government, aided by my noble friend Lord Whitty. I am sure that is because he has a bad cold: my noble friend is usually more gentle with the Government. It is a welcome debate because it gives me an opportunity to put some minds at rest and to address some of the questions. Those were summed up by the question asked by the noble Lord, Lord Bradshaw: where is the vision? In some quarters, the language has been a little exaggerated but I know it reflects the passion that people feel about such an important area of social policy to which we all have a long-standing commitment. I was grateful for some of the wise words of the noble Lord, Lord Best. I shall come to them. All the contributions have been illuminating in different ways. I may not be able to answer some of the technical issues on housing finance. The example of Pendle was interesting although I drew different conclusions from those offered by the noble Lord. I shall write to noble Lords if I am unable to answer all the questions.
	This is an opportunity for me to restate some fundamental principles. Choice and affordability of housing are essential. We have a national policy for housing but ultimately housing is a personal choice. Our duty must be to provide the widest possible range of choices. Because it is "right to buy", it is not wrong to rent. We must never forget that we have a duty to meet the fact that not everyone who wants to own a home can afford it. We have a duty to ensure that there is a stock of affordable housing to meet the needs of those who are disadvantaged—the young, disabled, those on low incomes, the impoverished, elderly and those who find themselves suddenly without a home.
	We believe that there is a place for publicly financed housing where the market does not deliver because that secures so many other benefits, not least health. We know that over the past century housing has been the largest contributor to improved public health. For all those reasons, a government would be seriously derelict in their duty if they denied that they had a duty to provide social housing on the scale and in the ways needed.
	We are investing more in housing and social housing than ever before. I agree with those who said that one of the challenges is to make housing policy as important, visible and sexy as all the other aspects of social housing to which the Government are committed. Indeed, they are. That is what my department is doing. Our commitment to housing is demonstrated by the fact that we have tripled total capital investment from £1.9 billion in 1997–98 to £5.5 billion in 2007–08, with £3.9 billion going into new social housing. Many noble Lords set out in graphic language what they think are the challenges, but we have focused on three sets of solutions because they are the most effective and they are what we needed to do. The first of them has been to tackle and prevent shortages of homes by maintaining and sustaining the stock which we inherited in 1997—the cost/benefits of quality—and providing decent and better homes, and, in doing so, opening up new possibilities for whole communities in ways which I shall describe. Secondly, we have increased the supply of social housing in many parts of the country. I hope that I can put an end to the idea that we do not recognise the importance of new build in its many forms. We have offered greater choice and mobility. We have put all that, as did the noble Baroness, Lady Hanham, in the context of the great challenge of meeting demographic pressures on housing and doing something about the increasing gap between earnings and affordability of housing, as we are trying to do through our response to the Barker report.
	The first challenge was to get the best out of our existing housing stock. When we came into office, we were faced with a bill of £19 billion for the backlog of repairs. Two million social homes did not meet the basic standards of decency. That challenge required us to change the landscape and invent some new ways of doing things. We did it for a very good reason and it has delivered results. Since 1997, councils and registered social landlords have been able to invest more than £21 billion in their stock and there are one million fewer non-decent homes. With the work done and the plans in place, we can go 90 per cent of the way towards meeting our decent homes target.
	Far from being ashamed of that, I think that that is a record of which we should be absolutely proud. I would ask noble Lords—it is a parody of privatisation—what they would say to tenants who were left without bathrooms, kitchens, decent heating, a decent roof and paying high energy bills. Would they say, "Frankly, we would prefer you to be like that, rather than find some ways of raising additional money so that we can make a decent home for you"? We are now focusing our efforts on dealing with the last 10 per cent of non-decent social homes. We will come back to the House in the coming months with an announcement about the way forward for the decent homes programme.
	In some ways, I do not recognise the noble Baroness's gloomy assessment of how tenants respond. By way of the decent homes programme, we are able to anticipate ways of dealing with some of the most deprived and depressed areas of the country because we can ensure that the programme brings with it better access to a social mix and diversity of housing types. We are in the middle of a series of demonstration projects in areas such as Manchester, Leeds and east London which bring together housing and renewal strategies with a mix of tenures that will create a much more vibrant, mixed community. By dealing with housing as a social opportunity, we will tackle the issues and challenges of worklessness and crime.
	We have made that progress because we have been able to raise the resources. We have levered in an extra £6.7 billion through the arrangements we have made. The reason for our decision is not to undermine or bribe local authorities or to manipulate tenants and put them in a weaker position by reducing their rights, but to make sure that we could raise more money, modernise more homes and make their lives better.
	I recognise that some people have argued, and continue to argue, that we should make the same resources available to local authorities as are available to us through stock transfer. Along with the other suggestions that have been made about how we could change the way we finance council housing, the problem is the impact on public expenditure. Public borrowing is limited; we cannot take risks with the economy. As the noble Baroness, Lady Hanham, was saying, since 2003 we have seen terrific progress. Since 2003 virtually all local authorities have decided how they can best deliver decent homes: 185 have transferred or decided to transfer; 59 have decided to set up an ALMO; nine have decided to take a mixed approach; 98 have said they will retain the management. Only three authorities have yet to submit an options appraisal, and we are in close dialogue with them.
	Turning from that to our other big challenge—to build new homes—we have had significant success in the reduction of the most acute forms of homelessness: a 75 per cent reduction in rough sleeping, the end of bed and breakfast accommodation for homeless families, and the number of households living in temporary accommodation has remained stable since September 2004. I agree with the noble Lord, Lord Oakeshott, that there is a lot to do, but we have got some way towards removing the worst abuses. The noble Lord was right when he referred to Barker. Barker set us a challenge to build more affordable homes and we have made a start. We started with the Comprehensive Spending Review of 2004. We are committed to providing 75,000 new social homes for rent in the next three years to 2007. That incorporates a 50 per cent increase. We will do that because the RSLs themselves are more efficient. We will do more, which is why in the next spending review we are committed to setting out more ambitious plans. We have to wait for those, but I assure noble Lords that the commitment is there.
	In this context, we strongly believe—I say this to my noble friend—that local authorities have a critical and strategic role to play in planning housing investment. They must meet need and aspiration. Housing authorities which are simply there for the homeless cannot plan for everyone. They have to meet their responsibilities across the housing sector. David Miliband has made that quite clear. They also continue to be important; the owners and managers of homes in a mixed economy and mixed, sustainable community.
	Alongside that, in the interim—again in response to Barker—we are looking at a range of innovations as to how we can encourage the supply of social housing in the short and medium term, not least through the modification of private finance housing schemes. For example, a move towards demolitions means we can use extra space to provide additional units. We are looking at the possibility of allowing councils with ALMOs to build homes which the ALMOs will own and manage; for example, in Hounslow. In addition, we are looking at innovative ways in which excellent councils with good housing services can build new homes for rent. We are looking at ways in which housing benefit subsidies can be used to finance borrowing to purchase temporary accommodation and social housing. There is a whole raft of things to consult on. I hope that noble Lords will come forward with their ideas because that is extremely important. I am grateful in this context for the debate we had across the Chamber about how tenants responded to transfer. The evidence provided by the noble Lord, Lord Best, was compelling. I hope that noble Lords took note of that.
	In terms of the rural areas to which my noble friend referred, we are aware, which is why we set up the Affordable Rural Housing Commission, of the challenge of providing a balance of housing in rural areas to keep the rural economy alive and to meet local needs for affordability. Again, when we talk of expanding choice, we are looking at a whole range of new initiatives such as the choice-based letting schemes so that we can develop the choice and power of tenants, and not only in the council sector. We are obviously concerned about tenants in the RSL sector as well. We take that seriously.
	To conclude, going back to the point made by the noble Lord, Lord Bradshaw, and picked up by the noble Baroness, Lady Hanham, our task is not simply to provide social housing. We must grow the communities of the future. Yes, we will avoid the mistakes of the past and we will build sustainably. We will not build homes, we will build communities. That means building public realm, and taking that public realm as trust, which means that we have the highest quality design. High densities do not always make for poor design; think of the Italian piazza, for example. But that is our duty and that is the challenge, which is why we are putting such an emphasis on design and competence in that way. That is the context in which we approach not only the Barker agenda but the responsibility on us to ensure that social housing has the right place, and that we have a choice that is a balance between renting and buying but which at its heart has the needs of the family as our guiding requirement to provide what we can in the best possible way, using our resources in the most efficient way possible. I am very grateful to noble Lords who have spoken in the debate.

Baroness Scotland of Asthal: My Lords, I apologise to the noble Lord for being precipitous in rising. I rather anticipated that he might say what he did.
	The effect of this amendment would mean that we had judicial scrutiny of each and every notice that was served under this provision. Noble Lords will know that we already have something similar with regard to pornographic material that is identified and taken down, and I hope noble Lords will accept that the way in which that is policed by those enforcement agents who are responsible for it is proportionate, reasonable and appropriate. We would expect exactly the same approach to be taken in relation to these matters too.
	The noble Lord, Lord Goodhart, says the effect on service providers will make them not question the way the notice has been given. He is far too pessimistic, not least because service providers have an interest in making a service available to their customers in a commercial world. It will be necessary for those service providers to respond to the commercial interest, if no other, in making sure that they meet the proper demands of the market, and proportionate use and exercise of this opportunity would be available to them.
	The effect of these amendments and the introduction of the judicial oversight in the way the noble Lord proposes would, in effect, make these provisions totally unusable. I shall explain why that is so. It is implicit in inserting judicial involvement that this is a more burdensome process than that we have provided for in the Bill as it stands. If such an additional burden is being placed within the process, there must therefore be a good reason for it and that reason becomes more pertinent in the fast-moving world of the Internet. The delay cannot simply be glossed over as if it does not matter. In relation to the Internet, it does.
	The reason for amending the Bill in this way would have to be for providing greater protection to the individual than is currently the case. With the insertion of intent and recklessness into Clause 2, I do not understand how the amendment provides any more protection.
	Under the existing clauses, if the website host does not comply with a notice, the police will have to choose to prosecute under Clauses 1 or 2, providing a full, evidenced case, which satisfies a court just as required under amended Clause 3. The prosecution would have to prove intent or recklessness and they would have to prove that the person in question did not endorse the statement, if the person availed themselves of that defence.
	Several noble Lords in Committee were concerned that no one would fail to comply with a notice because of the effects of being considered to endorse the statement. That concern is substantially weaker now it is for the prosecution to prove intent, or recklessness.
	There was also some concern about those who would be issuing notices. In our discussions with the Internet industry over implementation, we have committed to working with them to solve the practicalities of the notice scheme, modelled on the similar arrangements that already exist and have worked well. I can assure the House that appropriate police personnel would be making decisions about when and whether to issue a notice. I will add to these comments in relation to government Amendments Nos. 51 and 58, when we reach them.
	Requiring the police to go to a judge before issuing a notice slows down the process at the cost of increasing the risk that a statement or article record has a negative effect on those seeing it and delays the speed at which a notice can be issued to a person—who may or may not be aware of the presence of such material—enabling them to remove that material. The net result of this does not provide any more protection for the individual than they already have under the drafting as it is.
	Amendment No. 48 makes provision for the Secretary of State to make regulations to provide for an application to be heard without notice to the relevant person and in his absence, and for the person on whom the notice is served to apply to the court for the revocation of the notice.
	Again, we simply cannot see the benefit in that. First, we do not think that the police ought to go to court before issuing a notice. Secondly, providing for a person to be able to revoke a notice seems unnecessarily burdensome.
	As the noble Lord rightly accepted, the notice is not intended to be a notice to a person not to commit an offence. It is a notice that there is a statement there that possibly comes within those offences and the person can comply or not. If that person does not think that that statement constitutes an offence under Clauses 1 or 2, then that person can ignore that notice. The only sanction for not complying is that the person does not have the right to claim, if prosecuted—I emphasise if prosecuted—that he did not endorse the statement.
	We see no useful role for a revocation process. As I said, the concern that people have no choice but to comply is substantially reduced with the amendments that we have made to Clause 2.
	I should also say that one of the advantages, but also the disadvantages, of the Internet is that one can take down a site in one minute and put back an almost identical site in another. If someone wanted to play cat and mouse with this, they would just wait until someone went to court to get the order, they would have the order in their hand, then they would take down the site and put up the next. You would have this going backwards and forwards all the time. We do not think that that is helpful. We certainly do not think that that is something that the noble Lord would want.
	These amendments slow down the time that it would take to ensure that an offending statement—one that could be of use to terrorists or encourage terrorism—is removed from the Internet, with all the consequent damage that such a delay could cause. In the light of what I said, I would invite the noble Lords to withdraw those amendments.

Lord Goodhart: My Lords, I am grateful to the Minister for responding to the amendment but I am afraid that I remain totally unpersuaded by her arguments. To begin with, although I accept that in many aspects of the Bill the insertion of an intent or recklessness test in Clause 2 makes a difference and is helpful, I do not think that it makes any difference at all to this problem. First, as soon as the Internet service provider is given the notice, it knows exactly what is going on. Secondly, and more importantly, it might make it easier for the Internet service provider to defend the case if it sought to do so but the Internet service provider will not do that. Frankly, I am wholly sceptical of the idea that market forces will press the Internet service provider to defend notices of this kind. All its interests are in doing nothing of that kind. Far from Internet service providers acting as protectors of freedom of legitimate speech, I have to say that in all the discussions and communications that I have had with the Internet Service Providers' Association—I understand this and do not criticise it at all—it has shown no interest whatever in this group of amendments. So I think that that is an unrealistic basis for saying that the amendments are not necessary.
	Nor do I believe that there is likely to be a significant delay. What the police would have to do in this case is similar to the need, in many cases, to obtain a search warrant or arrest warrant, for which they now have to go to a judge. Admittedly, the amendment requires a slightly higher level of judge—a circuit or High Court judge rather than a district judge or a magistrate. But I do not think that the police have a great problem with delay in getting warrants and I do not see why, where a case is made out, they should have a delay in getting permission to serve a notice here.
	It is also true that the application for the notice will be heard in private, so the first that the client of the Internet service provider whose material is blocked will know of it is when the block happens, which is exactly what will happen anyway. There is always a possibility of finding another service provider or something of that kind, but that will not be affected by this group of amendments.
	I have every respect for the police and I am sure that they would not—certainly not consciously—abuse their powers here but, as we have seen from other countries, there is a real risk of abuse of powers. It is plainly desirable that, before they go out and serve a notice, the police should be made to think twice about whether they really need to do that, and the best way of doing so is to say that they have to go to a judge to ask for permission.
	Having said that, at this time of night I am not proposing to press the matter to a vote and therefore I will ask the leave of the House to withdraw the amendment, but I think that this issue may well come back at Third Reading. I beg leave to withdraw the amendment.

Lord Goodhart: My Lords, we return to problems facing Internet service providers which we also dealt with under the first group of amendments. It has been suggested to me, and I have agreed, that I should take this group and the next group together because both groups concern the problems that might, in different ways, face service providers. The first group comprises Amendments Nos. 49, 50 and 52 and there is a government Amendment No. 51 in between. It is a fairly straightforward government amendment which I certainly do not object to.
	Amendments Nos. 49, 50 and 52 are associated with issues that relate to what in the Bill are called repeat statements. They are of serious concern to Internet service providers. Under Clause 3(4) notice given to an Internet service provider is treated as applying not only to the original matter of transmission by the ISP, but also to a repeat statement which is a statement substantially to the same effect as the original one but in a slightly different form. Of course, Clause 3(4) does not prevent a statement operating through a different Internet service provider. That would have to be dealt with by the service of a new notice on the new provider. It is not very difficult to see that someone whose website is blocked through one Internet service provider may not find it very difficult to find another Internet service provider.
	Whether there is a repeat statement or not is nearly impossible to monitor. Monitoring what is passed through an Internet service provider is extraordinarily difficult. There are ways in which it can be done, but they are likely to be difficult and ineffective. One of the problems is that, under the Bill as it now stands, ignorance that a repeat statement is being transmitted is, in fact, no defence because the effect of Clause 3(4) is that the Internet service provider which has been served with a notice is treated as having knowledge of the repeat statement whether it knows about it or not. That, therefore, overrides the test of intent or recklessness under Clauses 1 and 2. The Internet service provider commits the offence even if it does not know that it is transmitting the repeat statement.
	On the face of it, that is inconsistent with the electronic commerce regulations—Regulations 18 and 19—which require actual knowledge rather than some kind of assumed knowledge. I wonder how the Government reconcile those provisions with the e-commerce regulations. Admittedly, the Government provides a defence if the Internet service provider has taken "every step it reasonably could" to prevent the repeat statement becoming available to the public.
	Amendment No. 49 would remove any special treatment for a repeat statement. It would mean that a new notice would have to be served. There is probably not a great deal of practical difference between them since the originator can always switch to the new ISP and the process would plainly have to start again.
	If it is necessary to retain special treatment for repeat statements, it is too strict a test to require an ISP to take every step it reasonably could. We believe that the Bill should be satisfied if the ISP has taken reasonable steps. As the Bill stands, the ISP will have to show not only that the steps that it took were sufficient to be reasonable as a whole as a block to unlawful transmission, but that there were no other steps that could have been taken. That is altogether too strict a test. The burden on the ISP should be to show that it has taken steps which, in total, amounted to a reasonable effort to block the repeat statement. If that has done, it should be enough.
	There is one further point. Regulation 21 of the electronic commerce regulations requires that the burden of proof for any defence raised under Regulations 17 to 19 must be evidential only. Clause 3 (5) creates a defence if the defendant shows that it took all reasonable steps to prevent a repeat. That is not compatible with the Regulation 21, because the burden on the defendant is not limited to an evidential burden.
	Moving on to the second group of amendments—Amendments Nos. 53, 54, 56 and 57—subsections (8) and (9) of Clause 3 define statements that are "unlawfully terrorism-related" and can be the subject of notice. A statement is unlawful if it is capable under those subsections of being understood as an encouragement of terrorism. That is an amazingly wide definition. All kinds of legitimate statements are capable of being understood as encouraging terrorism by those people who want to understand them in that way. For there to be an unlawful transmission there must at least be a probability that these statements are not only capable of being so understood but will be so understood. Clauses 1 and 2 require that in order to be an offence a statement that is published or disseminated must be likely to be understood as encouraging terrorism. We see no possible justification for a lower test in Clause 3.
	When we raised this issue in Committee, the Minister said that there was a difference because, in Clause 1—and the intent test was not in Clause 2 then—you know the audience to whom the statement is being made. However, under Clause 3, the police do not know who is going to receive the message transmitted by the ISP. It is a wholly irrelevant distinction. First, under Clause 1, you do not necessarily know who your audience is. You may do if you are holding a public meeting, but even then, if it is of any size, you will not know who is there if it is not by invitation. If a statement is published via being made on radio or television, you have no idea whatever who is listening.
	Secondly, now that we have intent in Clause 2, someone who is disseminating terrorism material may very well not know in some cases to whom that material is being disseminated. Thirdly, surely the test of how a statement is likely to be understood depends on the content of the statement. If I see a statement praising 9/11, I understand it is likely to encourage terrorism even if I am repelled by that statement. Whoever monitors Internet material can say, "This is something which I can see is directed at supporters and is likely to encourage it". If so, so be it: that is an unlawful transmission. It is not enough to say, however, that you can block a transmission if it is a borderline case, where it may or may not encourage terrorism—where you can say that it is capable of encouraging terrorism, but you cannot say that it is likely to do so. I beg to move.

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Goodhart, for explaining how he sees these amendments and the advancement of the arguments in support. However, I do not agree with him.
	Amendment No. 49, for example, which removes the provision on repeat statements, would make the notice provisions utterly worthless. Without them, a person could receive a notice, wait for two working days, remove the material at the last possible moment in order to technically comply, and then load up the same information a matter of minutes later. I am sure that the noble Lord would not like to facilitate that sort of behaviour.
	The repeat statement provisions are at the heart of the effectiveness of Clause 3. Their removal renders the clause totally impractical. Without a requirement to take reasonable steps to prevent repeat statements occurring, the police would have to engage in sending hundreds of messages to the same webmasters who, if they were canny enough, could always comply and yet still make their statements available. The Government cannot, therefore, accept this amendment.
	I was pleased that the noble Lord acknowledged that there is a reasonableness defence, but we differ as to how that should be expressed. There is a subtle difference between the construction put on it by the noble Lord and the interpretation to be given to our provision. Every step a person could reasonably take requires both that he is capable of taking a step and that he takes it. That is every step he can reasonably take. "Reasonable steps", as suggested by the noble Lord, is simply not as clear. It is not clear whether the person in question must be capable of making the step that the court requires of it. It is not clear that they can comply simply by taking one, or only some, steps, when it may be possible for them to take others.
	We must remember that the statements which we are seeking to prevent being made have a potential role in encouraging terrorism, or provide information of use to terrorists. This is therefore not a trivial matter. We much prefer the current drafting, which we contend is clearer and more readily understandable. We hope that the noble Lord will feel able to agree with that.
	On Amendment No. 51, in my name, the Government are aware that Internet service providers in the UK are concerned that our provisions on repeat statements may contravene the Electronic Commerce Directive, which requires that a general obligation to monitor cannot be placed upon those service providers that fall within the terms of the directive. We are not of the view that the Bill places such an obligation on those providers, but brought forward an amendment in the other place to put the matter beyond doubt. Clause 3(6) was inserted to make absolutely clear that the protection against having a general obligation to monitor placed on certain Internet service providers offered by the Electronic Commerce Directive applies to this Bill.
	As I stated in Committee, we became concerned about this subsection and have taken the view that its retention does not achieve the aims it was designed to meet. The Government's view at the time of laying the amendment remains the same: the repeat statement provisions in Clause 3 do not impose a general obligation to monitor that offends against the directive. Notwithstanding this, Clause 3(6) was inserted to provide additional clarity.
	The Internet Service Providers' Association UK, while welcoming this amendment, raised some concerns that the protections offered by Clause 3(6) did not apply to those covered by the directive who participated in voluntary blocking of child pornography. In addition, we have become concerned that if Clause 3(6) remains as it currently stands, rogue website administrators may decline to edit content on their sites simply to avail themselves of the protection of Clause 3(6). This is clearly unsatisfactory and demands to be addressed.
	The primary purpose of Clause 3 is to require website administrators to be responsible for the content they are making public, especially those administrators engaged in making available extremist messages and images. In the light of our previously stated view that we do not consider that to comply with a notice will require general monitoring of a kind prevented by the directive, we have reconsidered the position and concluded that Clause 3(6) has caused unnecessary confusion and that it would be preferable to omit it.
	More generally, the industry has expressed concern about the need for further regulations being made applying the e-commerce regulations—SI2002/2013—to provisions in the Terrorism Bill. I can confirm that the Department of Trade and Industry intends to bring forward a statutory instrument to apply certain provisions of those regulations to the Bill. The Terrorism Bill could be covered in that exercise so far as is necessary. My officials have had some very constructive correspondence with the Internet Service Providers' Association UK during the passage of the Bill and have drawn up this change in the light of those discussions. We are satisfied that this meets its concerns and wrote to the association last week setting out the Government's detailed response to them.
	Amendments Nos. 53, 54, 56 and 57 remove the references to being "capable of being" understood to "likely to be" understood. The "likely to be" understood formulation, which the amendments propose, mirrors the provisions in Clause 1 about the effects of a statement. I set out the Government's position on this fully during Committee. Currently, it may well be that in issuing a notice the constable is aware that the statement is unlikely to encourage others to terrorists acts because it has, for example, been posted on a website run for children's educational benefit and no one viewing it is likely to understand it as an encouragement. None the less, if someone were to visit the site, they might be capable of understanding it as such. Instead, referring to the audience who have or would have seen it and on whom it is likely to have an effect, the constable is being asked to make a judgment as to whether such a statement is capable of being understood as unlawful terrorism-related.
	Instead of a second guess at whether the court will take the view that an audience is likely to have understood it as an encouragement, the police issue a notice saying that they are concerned about the presence of the statement. This allows the police to issue notices not only instead of prosecuting individuals, but also to warn individuals that their websites are being targeted and to make people aware of offensive content that they may not be aware of. The utility of the notice provisions extends beyond simply being a precursor to prosecution. If a person posting a statement does not accept that anyone is likely to understand it as being such an encouragement, they do not have to comply with the notice, in full confidence that they will not be prosecuted.
	In the light of what I have said on both groups of amendments, I hope that the noble Lord will feel able to withdraw his amendment and not bring it back at a later stage.

Lord Goodhart: My Lords, this amendment, which is again a significant amendment, concerns the special defences that are provided in Clause 1(6), Clause 2(9) and Clause 3(5). I have accepted the various changes that the Government have made to these amendments, but in Committee I argued that they were unnecessary if an intent test was applied, whether or not they were combined with a—I apologise to the House, I was reading from the wrong page.
	Amendment No. 61 concerns the standard of proof where legislation requires the defendant to prove something as a defence. The normal rule is that the defendant must prove the facts that he or she is required to prove on the balance of probabilities. However, where an Act so provides, it is possible to impose a lower standard of evidential burden. If a defendant shows that there are arguable grounds for his defence, the burden shifts back to the prosecution to disprove that beyond reasonable doubt. That was done in comparable circumstances in Section 118 of the Terrorism Act 2000.
	Recklessness is, as I argued earlier today, an unsatisfactory ground for conviction in these cases. The real test will be in relation to the relevant provisions in Clauses 1 and 2 over the defence that the defendant made it clear that the publication did not express his views. That means that it will be necessary to look at the disclaimer—using disclaimer in the broad sense, including not merely formal disclaimers but any equivalent which has been published—along with the overall tone of the publication, and so on. The dispute on whether a disclaimer or other material is enough to show clearly that the statements did not express the defendant's view is objective, not subjective. Therefore, where there is some kind of disclaimer, it should be for the prosecution to show that it is not clear enough. It is not for the defendant to show that it was. This is a case where making the burden of proof evidential is necessary and essential.
	In this case, these defences are going to be of great importance so long as the recklessness test remains in the Bill, as it clearly will, since they will be the only way out in a potentially large number of cases where it is possible to say that the material one has been putting out could encourage terrorism among people who were likely to be vulnerable to that encouragement. In those cases, such a defence will be important; for example, to all the major media outlets—both broadcast, like the BBC, and press—that may want to do things which they are well aware could technically cause support or encouragement for terrorism among some people.
	I believe, therefore, that it is essential that the test be made a reasonably low one. Once the defendant has produced some grounds for saying that it does not represent his views—and that he made it clear that it does not—then it should be for the prosecution to show that there is no sufficient clarity and that the offence has, in fact, been committed. I beg to move.

Lord Kingsland: My Lords, the noble Baroness has been on the end of two barrels from the Liberal Democrat Front Bench and it seems almost inhumane for me to fire at her from a different point in your Lordships' House.
	I support the amendment of the noble Lord, Lord Goodhart, and I want to re-emphasise the two points that he made. First, given the fact that this test is contained in the most important parts of the Terrorism Bill, and as it runs right through this Bill—principally, but not only, because of the definition of "terrorism" contained in it—it plays back the principle of consistency that the noble Baroness deployed with such skill in the course of our discussion over Amendment No. 17. We should apply that principle to the question of the evidential burden.
	Secondly, the two offences to which the amendment would apply were it to be accepted are contained in Clauses 1 and 2 of the Bill. They are both offences which carry with them very stiff penalties; and that is an additional reason for adopting the amendment.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Kingsland, for his compliment in saying that I debated "with such skill and efficiency". I would just note, of course, that that skill and efficiency had no effect whatever. I therefore wish him the same success that I received.
	In relation to the amendment, perhaps I may say to the noble Lord, Lord Goodhart, that I am a little surprised. I shall explain why. When we debated these matters in Committee I listened with great care to everything the noble Lord, Lord Goodhart said in this regard because, of course, we were looking at the difference between the evidential burden and the usual burden. The point the noble Lord, Lord Goodhart made, so powerfully, was that if we did not have in the provision intent simpliciter, or indeed intent with recklessness, then one of the ways of addressing the issues about which he was concerned was by having the reverse evidential burden. However, if we had the intent provision, of course all these worries and concerns would fall to one side.
	I would just remind the noble Lord, Lord Goodhart, of what he said then. I think it might assist your noble Lordships if we refresh our memories so I cite it here in full. The noble Lord, Lord Goodhart, said that this new clause was,
	"a second-best to putting an intention test into Clause 2, in which case this amendment would be unnecessary".—[Official Report, 7/12/05; col. 705.]
	I warmly agreed with him and it was part of the reason, when considering how to address the proper concerns that had been expressed, that we brought forward the comprehensive amendments to which I have already referred. I just want to say in that regard—I say it with utmost gentleness to the noble Lord, Lord Kingsland—that it is a tad inconsistent to say that we agree in principle on recklessness, we agree on intent, but we do not agree that we have now done enough and do not need this. I would be happy to give way if, on mature reflection, the noble Lord wants to change his mind. I note with the most acute disappointment the noble Lord shaking his head.
	Let me, therefore, try to respond more fully. I think we have to examine this properly and I feel that it would probably be appropriate just to clarify the actions that would force these defences. Clause 1 of the Bill creates the defence of encouragement to terrorism. Under this clause it would be an offence for a person to publish, or cause another to publish on his behalf, a statement they either intend to be understood as an encouragement to terrorism or that they are reckless as to whether it is likely to be so understood. This will use the subjective recklessness test definition set out in Regina v Gee.
	Clause 2 creates the offence of dissemination and the intent provision is provided for in the new clause in the way that we have all debated this afternoon. It is therefore currently a defence for a person charged under Clause 1 of the Bill to show that he published, or caused to be published, the statement in respect of which he is charged only in the course of provision or use by him of a service electronically, and that the statement neither expressed his views nor had his endorsement. So the defence in Clause 2(9) is similar to the defence in Clause 1(6). It is currently a defence for a person charged under Clause 2 of the Bill to show that he engaged in the conduct falling within Section 2(1); namely, disseminating a terrorist publication only in the course of provision or use by him of a service electronically and that the publication, so far as it encouraged terrorism, neither expressed his views nor had his endorsement and that it was clear in all circumstances that it did not express his views, nor have his endorsement, and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. All the things that noble Lords wanted, I may respectfully suggest, are now there in the offence, being something that is a defence to the application. Overall the burden, as is normal, will continue to rest on the prosecution in the ordinary way.
	Because of the changes we have made, the evidential shift, as, I may respectfully suggest, the noble Lord, Lord Goodhart acknowledged in Committee, is no longer necessary. A person who receives the notice under Clause 3 will be responsible for the repeat of statements and we have gone through these matters quite extensively. Whether or not the burden of proof should be placed on the defendant is always a difficult issue. When it is, it must be assessed to ensure that it does not breach Article 6 of the ECHR, which guarantees the right to a fair trial. It is the Government's view that it is proper and fair for the defendant to bear the burden in these circumstances.
	Placing a burden on the defence in relation to the offences is fair and reasonable for a number of reasons. First, the question of endorsement, which is an issue here, is not an element of either of the offences. The defence is therefore a true defence aimed at the exception to the offence. Secondly, whether or not a person endorsed a statement or it expressed his views is a matter that is peculiarly within his own particular knowledge. It is right and proper for it to fall to the defendant to prove that he did not endorse a publication or statement in all the circumstances. The defendant will have available to him evidence to show whether he endorsed a statement or publication or, as the case may be, his intention for disseminating it. For example, he can provide testimony from his audience, point to disclaimers and bring forward evidence on the nature of his business.
	Placing a burden on the defence in relation to Clause 3(5) is also fair and reasonable for a number of reasons. The steps a person took to prevent repeat statements appearing are within his particular knowledge, and the process whereby a person becomes liable for repeat statements is fair.
	The reversal of the burden in any particular offence is not a small matter. I know that the noble Lord appreciates that, but as we discussed in Committee, it is not a novel one. I remind your Lordships of the strong parallel I made to Section 18 of the Terrorism Act which Parliament passed only five years ago and which creates the offence of money laundering of terrorist property. This offence provides for the defendant to prove that he did not know, and had no reasonable cause to suspect, that terrorist property was involved. This is a very similar provision. The defendant is best placed to prove whether he did or did not endorse publication and make this clear in all the circumstances.
	Accepting the amendment would make the defences to the offences of encouragement to terrorism and dissemination of terrorism too easy to establish, especially in the face of the amendments that we have made to increase the burden on the prosecution with respect to Clause 2. I remind your Lordships once again that it is the Government's intention to create an offence that covers the evil of encouraging others to commit terrorist acts, and to make this offence workable.
	I hope that we have demonstrated that, as a listening Government, we listen with a great deal of care and attention. We assume that noble Lords opposite mean what they say when they say that if we introduce an intent test, it would be unnecessary to have these amendments. I respectfully agree with their original position. We have sought to meet their concerns and we believe that we have met them fully and honourably.

Lord Thomas of Gresford: My Lords, the Government have graciously conceded that intention and recklessness should be the mens rea in offences under Clauses 1 and 2 of this Bill. It is interesting to compare that with the offence that is created by Clause 8. The actus reas is simply attending a training camp. That is all. The mens rea is not encouraging, intending to help, playing a part or anything of that sort, the mens rea is simply knowing or believing that the training is being provided at that camp. That opens a person to an offence carrying 10 years' imprisonment.
	The purpose of this amendment is to cover all the areas that have been referred to by noble Lords in discussing this amendment. Clearly where one has as draconian a prohibition as is set out in Clause 8, it is right that a person with perfectly legitimate reasons should not have to face the possibility of being convicted of a serious offence. It may be a medical person, for example, as well as the illustrations that have already been given, who finds himself attending at a training camp. If he puts forward his perfectly legitimate reasons for being there, it is for the prosecution to rebut his defence with evidence. That is the essential thing; that it should be with evidence. In a defence of this type, raising an evidential burden of proof should be faced, and not with something that is far more nebulous than that.
	I hope the listening Government—as we have heard it said at least six times today—will listen just a little bit more carefully on this one, and realise how tight and draconian this particular section is.

Baroness Williams of Crosby: My Lords, I add one more voice to this chorus asking the Government to think carefully about this. I quickly pick up a slightly different example from any of those so far put before the House. The assumption behind this Clause, and indeed behind the Bill, is that we have some fairly clear idea about where terrorism is coming from, and that it largely emanates from Al-Qaeda and other global terrorist networks. That is probably true.
	Yet my political memory goes back to other examples of terrorism which are much involved with the training of people, some of them in this country. Many of us will recall, for example, that there were training camps run by the IRA and the Provos, and also by the Loyalists, in parts of the United Kingdom. I remember as a junior Minister in the second Wilson administration that there was a serious case—the noble Lord, Lord Judd, will probably remember this too—of Colonel Stirling actually running training camps in Scotland, the purpose of which was to support a putsch against the Wilson government. That was not a legend, that was actually a fact. Much more recently, there have been other examples of terrorist camps in a country which would normally expect terrorism to come from inside. I gave at Committee stage the example, again a genuine one, of extremist right-wing groups in the United States running training camps in the Rocky Mountains, training people in arms, explosives and terrorism, the object being to overthrow the United States government. They admittedly were largely mad, but that did not stop them being in training.
	What really worries me is that, as my noble friend Lord Thomas has said, in effect what we are looking at is a clause so narrowly drawn and so extremely heavy in its danger of sentences being brought against people who attempt to investigate this, that there is a real possibility that this whole area would be overlooked. The reason it would be overlooked is because, as we all know, it is the tendency of intelligence organisations to concentrate on—rightly so—the current major threat. They often do not notice nor have they the resources to target areas where they are not looking for trouble to arise.
	I seriously hope that the Government will look at the matter again and consider adopting something like my noble friend's amendment, because I am profoundly concerned about the effects of the provision, in not only in the obvious but the less obvious areas of terrorism. We have no reason to believe that terrorism in Northern Ireland has completely ended. It is possible that there might be other terrorist groups of an apparently small and insignificant nature that could nevertheless resume terrorist activities. I hope that the Government will very carefully think again, as this is a really serious issue and not one to be lightly dismissed.

Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that we will not and have not lightly dismissed this matter. She was absolutely right to remind us about the pernicious nature that training camps can have and the consequences that they can have in training and influencing those who subsequently go on to commit the most grievous acts of terror to the detriment of our respective communities and countries. We absolutely take that into account.
	Clause 8 creates the offence of attending a place where terrorist training is taking place to underline that very fact. We have to put these provisions in the context of the circumstances that we find ourselves in, whereby the training of young, impressionable men in particular has led to them taking their own lives and the lives of a number of innocent people with them. Preventing those susceptible—particularly young—people being taken in by such trainers and influenced in this most pernicious way is of the utmost importance. Therefore, we agree with noble Lords that this is a very important issue indeed, and we do not take it lightly, because training is a key element of any terrorist activity and it is right that we should clamp down on it.
	I know that concerns have been expressed today, not least by the noble Lord, Lord Goodhart, but by many other noble Lords as well—and my noble friend Lord Judd echoed them—about the effect that Clause 8 will have on legitimate investigative journalism. As I made clear in Committee, the Government's position on that is unambiguous. Nothing in the clause, or the Bill as a whole, will in any way hinder the work of legitimate investigative journalism. A journalist who has suspicions that terrorist training is taking place can take steps to establish whether there is any foundation for his or her suspicions. However, at the point when his suspicions have been confirmed, the correct course is for him to leave and alert the appropriate authorities; that is as true for journalists as it is for anyone else.

Baroness Scotland of Asthal: My Lords, I am conscious that it is five past ten. I am entirely in your Lordships' hands. We can go on for so long as the participants wish to, and for so long as the Chief Whip allows me. The Floor is yours.

Baroness Scotland of Asthal: My Lords, we are making it clear that this provision applies to training camps in this country. There is nothing to prevent journalists from continuing with their ordinary journalistic reporting with regard to troubles in other places in the world. We are dealing with terrorist camps of this nature. I remember very graphically the example given by the noble Baroness, Lady Williams, of the circumstances in which she found herself. When she discovered that she was somewhere she clearly did not wish to be, in the middle of a terrorist camp, she got out of there. That is what John Simpson said in his report, too:
	"I made my excuses and left".
	Quite right too. We can assure someone in that position that their ability to report in a proper way is not in any way impinged on by this provision.
	We need to look at this provision with a great deal of care, and we have done so. We do not think that the first part of Amendment No. 62—paragraph (a)—is necessary. The second part of the amendment would provide that a person does not commit an offence if, while at the terrorist training camp, he had no intention of furthering the commission or preparation of acts of terrorism or convention offences. As I indicated before, we consider that to be a significant loophole. It is not difficult to imagine that our courts might be faced with a steady stream of people claiming that they were simply observing, but not participating. Some might claim that they were just doing the catering or running the crèche, or myriad other excuses. What would certainly happen is that people would argue that they were only at the terrorist training camp to provide humanitarian assistance.
	We have to grapple with the mischief with which we are faced. It is a severe and acute mischief, which we must address. Therefore, our provisions need teeth. We cannot afford simply to allow them to be a toothless bulldog that cannot bite on any of the things that need to be changed. The Government's position is clear: no one has any legitimate reason to be at a place where they know that terrorists are being trained. It is as simple as that. I understand that there is a difference of view, but we believe that the provisions we are now putting in place are necessary to address the real threat. They should not impinge improperly upon ordinary journalistic licence; anyone behaving properly will be able to work quite comfortably within them.
	I hope that that has provided a modicum of reassurance in respect of journalists, but I absolutely anticipate that, if it has not, the noble Lord, Lord Goodhart, and others may wish to return to the matter.

Lord Henley: My Lords, I hope to be brief, bearing in mind what I imagine are the strictures of the Chief Whip. This is a new issue, but I believe it to be important, and I hope that the Government will look seriously at it. The amendment would create a maximum penalty of five years for withholding an encryption key, for all offences.
	I must make it clear that the amendment is probing. The more I look at the amendment, the more I have fears that it might be defective. Having said that, as I said earlier, it is important and I hope that I can get a serious response from the Government.
	The purpose of the amendment is to question whether the difference in length of sentence between cases of national security and other cases is appropriate. This issue is particularly relevant to cases, for example, of serious fraud, predatory paedophiles and serious organised crime. With powerful encryption software becoming increasingly available and more widely used by criminals in cases such as these, it would seem logical that a criminal under investigation for such offences would prefer to face a two-year sentence than any of the likely charges resulting from the availability of that encrypted evidence to the police.
	The police have made it known that they find it increasingly hard to de-encrypt material that could contain evidence that would be vital to bring such charges. Indeed, there are growing numbers of cases where charges have not been brought due to an inability to de-encrypt material held on computer hard drives. Not only would such criminals not be punished to the full extent that they deserve, but the withholding of the encryption material would mean further victims and suspects could not be identified.
	Clause 15(1) states,
	"for 'two years' substitute 'the appropriate maximum term'",
	but Clause 15(2) states that in cases of "national security" there is a maximum of five years, "in any other case" two years. It would be helpful if we could have a definition of precisely what the maximum sentence was going to be in many cases.
	Having said that, I hope that the Government see the problem here. There might be those who prefer to refuse to help the police with that de-encryption, because they reckon that a two-year sentence—the maximum available for such refusal—would be better than a sentence that they might get beyond that. I therefore ask the Government to give serious consideration to the issues raised by the amendment.
	Again, I apologise for not bringing this up earlier, because I think it is more a point for in Committee, but it was only made available to us at a late stage. I think it is one on which the Government should give a serious response. I beg to move.